Judgment Calls (33 page)

“Haley, I want to show you another photograph now.” I handed her the DMV photo I had pulled of Travis Culver and reminded the grand jurors that Culver was the owner of the Collision Clinic who had testified at Frank Derringer’s trial. “Do you recognize this man?”

“Sure, that’s Travis,” she replied.

“Do you know his last name?”

“Not before you told me. Street don’t really care about last names,” she said.

“How do you know Travis?” I asked.

“Regular out there on the street. Dates. You know.”

“You mean he picks up prostitutes?”

“Yeah. The younger the better, it seems. I used to see him a lot more about a year and a half ago. Guess I got too old for him and he moved on.”

“Have you seen him at all since Kendra Martin was attacked?” I asked.

“Nope,” she said. “Seems like he stopped coming around about that time.”

The grand jurors didn’t have any questions, so I thanked Haley for her testimony and excused her.

Next up was Travis Culver. I’d slapped the subpoena on him the day before and received a call from an attorney within the hour. Lucky for me, Culver had called the attorney he uses for the auto shop, a guy named Henry Lee Babbitt who hung a shingle outside of his house and called it a law office.

Since Henry Lee’s usual fare was wills and uncontested divorces, he was useless as a criminal defense lawyer. To begin with, I had to walk him through the way grand jury subpoenas work. Culver’d be subject to arrest if he failed to appear. Although he had the right to refuse to respond to questions if he believed that the answers might incriminate him, he had to show up, and he did not have the right to an attorney during the grand jury proceedings. At most, Henry Lee could wait in the hall outside the hearing room; Culver could ask for breaks if he wanted to consult with his attorney at any time. You can see why the defense bar says that grand jury proceedings are a prosecutor’s best weapon.

Henry Lee’s request for an immunity deal was further proof of his abject ignorance of criminal procedure. A good defense lawyer will find out what the prosecution knows before even considering the possibility of a deal. To do otherwise tips your hand. Henry Lee had tipped his for good. I had told him only that I wanted to talk to Culver about his testimony in the Derringer trial. In return, Henry Lee had given up his client in the form of a hypothetical.

“Let’s say hypothetically that I had a client who got wrapped up by some bad guys into an ugly sexual incident, thinking the whole thing was consensual?” he said. “And then what if, hypothetically, when it turned out that the young woman hadn’t in fact consented to this little encounter, the client got blackmailed by the bad guys into a cover-up?”

Henry Lee had watched way too many bad TV shows, and now I had even better questions for Travis Culver.

Culver looked terrified as he took the chair in the middle of the grand jury room. He was sleep-deprived and disheveled, and I could smell the fear in his sweat as he passed.

At least Henry Lee had given him one piece of good advice; Culver invoked his rights as soon as we got past his name and address.

“Do you know Frank or Derrick Derringer? Isn’t it true that you overhauled Frank Derringer’s car on a Sunday, on short notice, to get rid of physical evidence? Do you use the services of teenage prostitutes? Did you and Frank Derringer rape and beat Kendra Martin and then leave her to die in the Gorge?” That last one was what you call a compound question, but no one was there to object to it, and Culver wasn’t going to answer anyway, so what the hell?

I kept going. “Isn’t it true that you paid Derrick and Frank Derringer to stage a sexual assault upon a young girl for your pleasure? And that when, unbeknownst to you, the violence turned out to be real, they threatened to reveal your identity unless you cleaned out the car and offered false testimony in Frank Derringer’s defense?” Another horrendously compound question, but it worked. Culver was clearly thrown off. I wish there was a way for the court reporter to transcribe the look on a witness’s face. This one said, How the hell do you know all that? I wanted to respond, Your stupid attorney pretty much told me, but I didn’t.

Culver looked like he was thinking about answering the question but then gave me the standard response. “On the advice of counsel, I refuse to answer on the ground that it might incriminate me.”

When I thought the grand jury had the gist, I excused Culver and brought in my final witness, Lisa Lopez.

“On behalf of the grand jurors and myself, thank you for coming, Ms. Lopez. I know how busy you are. You were the public defender assigned to represent Frank Derringer, is that correct?”

“Yes. As you and I have discussed, it is highly unusual and extremely questionable that you have brought me here by subpoena, and I have appeared only on your assurances that you are seeking an indictment against Derrick Derringer, and that my testimony will not be used to secure new charges against my client, Frank Derringer.”

Securing Lisa’s presence here at all had required substantial maneuvering. When I had explained the situation to her at her office, after hours, she had immediately balked, citing attorney-client privilege, work-product privilege, the duty of loyalty, and the duty of zealous representation. She seemed offended when I responded, “Ethics, schmethics,” so ultimately I’d had to convince her that helping me out was both ethically permissible and morally required. After lengthy negotiations, she finally accepted service of the subpoena and promised not to rat me out to my boss. The deal was that I’d ask only a few questions, which we agreed upon beforehand. In response, she would provide the exact answers we’d rehearsed in advance, including the long-winded caveat she’d just provided as an introduction to her testimony.

I continued the questioning as planned. “In your defense of Frank Derringer, one theory you presented at trial was that the crimes against Kendra Martin were committed by whoever killed Jamie Zimmerman, is that right?”

“Yes, that’s correct.”

“Ms. Lopez, I’m handing you a transcript of your opening statement in the Derringer trial. Please read for the grand jurors the highlighted passage.”

She read from the transcript:

“The wrongdoing that has brought Kendra Martin, Frank Derringer, and all of us together began about four years ago. Four years ago, Portland police officers found the body of another troubled young girl named Jamie Zimmerman in the Columbia Gorge. Jamie wasn’t as lucky as Kendra. She was murdered strangled after being raped and beaten. Like Miss Martin, Jamie was a drug addict who supported her habit through occasional prostitution. Like Miss Martin, she was raped and sodomized. Police found Jamie’s badly decomposed body less than a mile from where Kendra Martin was located. Ms. Kincaid mentioned that whoever committed this crime took Kendra’s purse. Well, guess what, ladies and gentlemen? Whoever killed Jamie Zimmerman took her purse too, and it was never recovered.”

I saw some of the grand jurors flip back into their notes, asking themselves the same question I’d asked myself three days ago. “Ms. Lopez, how did you know that Jamie Zimmerman’s purse was taken and never recovered? The police were unaware of that fact until just days ago.”

“I refuse to answer on the ground that the information is protected by the attorney-client privilege and the work-product privilege,” she responded.

“Ms. Lopez, you understand that the attorney-client privilege protects only information obtained in the course of communications between you and a client, is that correct?”

“That’s correct, counselor.”

“The work-product privilege, on the other hand, applies to any information you obtain during the course of working as an attorney on behalf of your client. In other words, it covers not only communications between you and your client but also information you derive from research or interviews of third parties. Is that a fair summary of the privilege?”

“Yes, counselor.”

“It would be a violation of your professional ethics, wouldn’t it, Ms. Lopez, to assert a privilege that you did not actually believe covered the information requested from you?” I asked.

“That’s correct. I would not assert a privilege unless I had a good-faith belief that the privilege applied to the requested information.”

“I want to be very clear here, Ms. Lopez.” I paused for emphasis. “I have asked you how you knew that Jamie Zimmerman’s purse was taken from her when she was killed. And you are refusing to respond not just on the basis of work-product privilege, but also on the basis of attorney-client privilege. Is that correct?”

“Yes, it is,” she responded.

“I understand and respect your position, Ms. Lopez. Thank you for your time,” I said, excusing her.

When I announced that I had no further witnesses, the grand jurors’ questions began to fly. Was I arguing that Frank Derringer had killed Jamie Zimmerman? How could that be, when we knew for certain that he didn’t kill at least two of the other women described in the Long Hauler letter? Did I think Derrick Derringer was in on it? What should they do about Travis Culver? Did this mean that Detective Forbes coached Margaret Landry’s confessions?

“I am asking you to indict Derrick Derringer on the following charges. First, statutory rape based on Haley Jameson’s testimony that Derrick Derringer has had sexual intercourse with her. She is only sixteen years old, and the photograph you saw corroborates her testimony. Second, obstruction of justice and perjury for offering false testimony on behalf of his brother, Frank Derringer. Third, conspiracy to rape and murder. He may not have been present at the time that Kendra Martin was attacked, but you have heard evidence suggesting that the Derringer brothers conspired to rape and kill Kendra Martin to send a message to other girls on the street that they’d better make their payments, one way or the other.

“I am not presenting any charges relating to any of the murders described in the Long Hauler letter, including the murder of Jamie Zimmerman. Nor am I requesting charges against Frank Derringer or Travis Culver.” Double jeopardy protected Frank Derringer from being charged again with the attack on Kendra, and Culver couldn’t be indicted by this grand jury, since he’d been brought here under the compulsion of a subpoena. “I understand that it is difficult to reconcile my theory of the charges against Derrick Derringer with some of the extraneous evidence. The question for you to resolve is whether, despite those complications, you believe a jury could find Derrick Derringer guilty beyond a reasonable doubt.”

I had blocked off the rest of the grand jury’s afternoon so they would not feel pressured in their deliberations. I gave them my pager number and asked the foreperson to beep me when they’d reached a decision.

I passed Tim O’Donnell in the hallway on the way back to my office.

“Hey, Kincaid, I was just looking for you. Where you been all morning?”

“Went over to JC-2 for a couple of arraignments. Crazy over there,” I said, looking down to make sure that everything was tucked away neatly in my file.

So I wasn’t sharing the sandbox anymore. Big deal. Playing well with others isn’t all it’s cracked up to be. Besides, technically speaking, I had done everything I was told to do. Frank Derringer was free, and my actions had in no way jeopardized the exoneration of Margaret Landry and Jesse Taylor.

As it turned out, O’Donnell still thought we were sharing.

“Just got back from OSP,” he said, taking a bite of the bagel he was carrying around. The Oregon State Prison was nastiness incarnate, but O’Donnell was probably well past letting it affect his appetite. “Landry and Taylor passed their polys. FBI guy says no signs of deception to the three key questions.”

The polygrapher had asked Taylor and Landry whether they abducted or killed Jamie, wrote the Long Hauler letters, or knew the Long Hauler. Passing the polys helped clear the way for their release.

For a second, I thought I felt a pang of guilt for not telling O’Donnell what I’d done, but I decided it was hunger brought on by watching him eat his bagel. The moment passed when he started chewing with his mouth open.

“So what happens next?” I asked. As far as I was concerned, what happened next was a big fat indictment against Derrick Derringer, but I kept that to myself.

“Duncan’s on a call to the governor now,” O’Donnell said. “The only question is whether to get Landry and Taylor out through the courts or have the governor pardon them. Looks like a pardon, though. The courts will take too long, and there’s no guarantee we could even get them out that way without an error at trial.”

Believe it or not, what’s known as a “mere” showing of innocence is not a legal basis for setting aside a lawfully obtained conviction. Instead, the defendant has to point to an error during trial that affected the result of the case. Illegally seized evidence introduced? Public defender fell asleep? Then you might have a chance at reversal. But if the procedures were lawful, it’s pretty much impossible to set aside a jury’s guilty verdict, even if you subsequently demonstrate your innocence. Respecting the finality of the guilty verdict is the only way to keep the courts from being flooded by convicts’ endless claims of innocence. Without a procedural error, Taylor and Landry had a better chance of release through the governor’s intervention than in a court of law.

“Is Jackson willing to issue the pardon?” I asked.

“Looks like it. We’ve talked about a stipulation of police misconduct as the trial error, but Duncan and Jackson are worried about a beef from the police union,” he said.

“Was Landry poly graphed about that? What did she say about Chuck?”

“Nada. The polygraph only covered the ultimate issue of factual innocence. The examiner was worried about adding too many questions.”

The greater the number of material questions you put in a poly, the higher the risk of either false signs of deception or inconclusive results. So much for using modern technology to find out if the man I’d been sleeping with was lying his ass off.

“Oh, and the FBI finished its profile. Pretty much what we expected,” he said.