Lying With Strangers (23 page)

THE MOMENT SHE HEARD THE TONE IN TONY’S VOICE OVER THE
phone
,
Peyton knew that the news was bad. She’d thought that she was prepared, that she’d resigned herself to the inevitable. Over and over she’d repeated Tony’s words like a mantra in her head, that an indictment was merely a piece of paper and that she’d be vindicated in the end. Still, she nearly dropped the phone when her lawyer dropped the bomb.

“It’s a two-count indictment,” he said.

“Tell me,” said Peyton, her hands shaking.

“You and Kevin are charged with the same crimes. Count one, second-degree murder. Count two, accessory after the fact to murder.”

“Second degree? That’s good. I mean, better than first, right?”

“It’s still punishable by life in prison.”

“Then how is it different from first degree?”

“You’re eligible for parole with second degree.”

“Great. Maybe the hospital will let me pick up my residency when I’m sixty-two and a free woman.”

“It wouldn’t take that long. But that’s not really what I’m focused on.”

He sounded genuinely befuddled, which didn’t comfort Peyton. “What’s eating you, Tony?”

“Honestly, this is a very strange indictment to me.”

“How do you mean?”

“The technical legal distinction between first- and second-degree murder boils down to premeditation and deliberation. In this case, the question would be did you have time to reflect before you shot Gary Varne? Did you and Kevin plan the murder? Normally a prosecutor would just charge you with first-degree murder and let second-degree murder be a fall-back position for the jury, just in case the evidence on premeditation and deliberation doesn’t play out at trial.”

“So he’s being kind to us?”

“No. I think he’s being clever.”

“Explain.”

“If he had charged you with first-degree murder, you would have no right to bail. You and Kevin would be locked in jail until trial.”

Peyton shook her head, confused. “Again, that sounds like he’s being kind to us for some reason.”

“Not hardly. Keeping you two together plays right into his strategy.”

“I don’t understand.”

“He doesn’t want the two of you sitting in separate jail cells awaiting trial. He wants you in the same apartment together, sharing the same bed at night.”

“Why?”

“You’ve read the newspapers. Grand jury proceedings are supposed to be secret, but it has already leaked out that the foundation of the government’s case is that you and Gary Varne were having an affair.”

“But that isn’t what happened.”

“That won’t stop him from trying to prove it. If you think it’s bad now, wait until the trial begins and he unleashes all of his proof of your alleged infidelity.”

The thought jarred her. “I can only imagine what might go through Kevin’s mind.”

“That’s exactly my point. By keeping you two together, Ohn is
building a pressure cooker. The more time you spend together, the more opportunities you have to argue over what really happened between you and Gary Varne.”

“So he’s hoping to make life miserable for us?”

“Not just that. The more you two scrap, the more likely it is that one of you will break ranks and hang the other one.”

“I would never. Kevin would never.”

“Never say never,” said Tony.

Peyton lowered her head, allowing herself to at least consider the possibility that he might be right. She drew a deep breath and asked, “What happens next?”

“I don’t want police officers coming to your house and handcuffing you on an arrest warrant, so I’ll call Ohn and try to set up a time for you and Kevin to turn yourselves in. You’ll be arraigned and, like I said, probably released on bail. I’ll give you a call as soon as we’ve ironed out the details.”

She was staring at the blank bedroom wall, numbed by the harsh reality that was finally setting in.
I’m being charged with murder.

“Peyton, are you okay?”

Tony was speaking in his normal tone, yet he sounded far away.

“Yeah, sure,” she said in a flat, weak voice. “See you at the party.”

TONY FALCONE MISSED THE EVENING NEWS BROADCAST AT SIX, SO AT
11:00
P.M.
he was glued to the television from the comfort of his king-size bed. He wasn’t sure what priority the story would receive, and of course he was torn about it. On the one hand, he knew that publicity would pain his client. On the other hand, what the hell? If he weren’t getting all the attention, it would simply have fallen on some other less-deserving lawyer.

“Jennifer, come quick,” he shouted.

His wife emerged from the bathroom, dressed in an oriental silk robe, a hairbrush in hand.

“Lead story!” he said, then increased the volume by remote.

A smart-looking anchorwoman was on the tube, using her signature sensational delivery. “A major development today in what is already Boston’s most-talked-about criminal case.”

Behind her on the screen appeared a photograph of Peyton’s face. It was extremely flattering, almost sensuous in the way her lips were parted, her hair slightly blown. Obviously the camera crews had snapped enough shots to turn up the alluring, sexy expression that suited the angle of their “news” coverage.

The anchorwoman continued. “A grand jury returned a double indictment for murder against a husband and wife accused of killing the man who ended up on the losing end of a tawdry
love triangle. At a news conference this afternoon, assistant district attorney Charlie Ohn had this to say.”

They shifted to footage of Ohn standing at a lectern beside the American flag. “This afternoon…”

“Blah, blah, blah,” said Tony.

“I want to hear,” said Jennifer.

“For heaven’s sakes, you’re a former prosecutor. You could recite his canned speech in your sleep.” He waved his arm and added in a mocking, baritone voice, “With liberty and justice for all.”

“Shush,” she said, then did a double take. Tony was suddenly on the screen.

“What the hell are you doing on television?”

“I held a little conference of my own.”

“You snake. I thought we had agreed to do it jointly, tomorrow.”

“Don’t you know better than to trust your own husband?”

She slammed him with a pillow. Tony rolled off the bed and positioned himself in front of the set, riveted to his own image.

“Now,” said the televised Tony, “these polygraph examinations were conducted for our internal purposes only, so I have no idea how the results leaked to the press. But now that they’re public knowledge, so be it. I’m not afraid to tell you that my client, Dr. Peyton Shields, has told me from the very beginning that she is innocent, and I believe her.”

The segment was over. The anchorwoman was onto another story of wasteful spending on road construction and the Big Dig. Tony switched off the set.

“What do you think?”

Jennifer grimaced. “I’ll be honest. I’m not real comfortable with it. What’s this baloney about how you don’t have any idea how the polygraphs leaked to the public?”

“Hey, if the prosecutor can keep a straight face and say that he can’t account for grand jury leaks, I can play the same game.”

“That’s exactly what I’m talking about. You view this too much as a game. That’s why I didn’t want to do this case with you.”

“Come on. We’ve been married ten years. It’s about time we tried a case together.”

“We have totally different styles. It makes for an interesting marriage. I’m not sure it makes for a very smooth trial.”

He smiled mischievously and came to her, placing his arms around her waist. “So who likes smooth?” He kissed her lightly on the lips, then at each corner of her mouth.

“What are you doing?” she said, a little ticklish.

His hands slipped inside her robe. She tossed her long, red hair back and smiled.

“Come on,” he said as he led her toward the bed. “I’ll show you smooth.”

A pressure cooker. Those were the words that somehow stuck in Peyton’s mind. More than arrest, arraignment, or even second-degree murder. More than anything Tony had said to her. Pressure was the one thing that felt real to her.

She could feel it already as she lay awake in her bed well past midnight. Kevin was sleeping on his side, though she sensed he wasn’t really sleeping either. Who could sleep on a night like this, the night before husband and wife went marching into court to be arraigned on murder charges?

“Kevin?” she said in the darkness.

“What?” He answered without budging, his back to her.

“Why didn’t they ask you if you killed Gary Varne?”

He still didn’t move, didn’t answer right away. Finally, he rolled over and faced her from across the bed. “How did you know that?”

“I saw the questions the polygraph examiner asked you.”

He propped himself up on his elbow and moved a little closer. He seemed to be looking her in the eye, though it was almost too dark to tell. “There was a very good reason for that,” he said.

“I want to hear it.”

“It has to do with the blackmail or the ransom or whatever you want to call it. I was the one who told you not to pay the money, remember?”

“I remember that very well.”

“And when we didn’t pay, Varne got killed. I talked that over with my lawyer, and she was convinced that, subconsciously, I may harbor strong guilt feelings over that. Jennifer was afraid that my feelings of indirect responsibility for his death might translate into perceived deception on my part if I was asked whether I killed him.”

Peyton tried to read his expression, but the dim glow of the nightlight wasn’t quite enough.

“Does that make sense to you?” he asked.

She wasn’t sure. But for the moment, she knew the right answer. “Yes, of course.”

He stroked her hair gently, then rolled over and returned to his side of the bed.

“Good night,” she said, her mind racing. Without a doubt, his explanation had made sense. Perfect sense.

Almost too much sense.

She closed her eyes and tried to get some sleep, knowing it wouldn’t come.

“ALL RISE,” ANNOUNCED THE BAILIFF. HE CALLED THE CASE NUMBERS,
adding “The Commonwealth of Massachusetts versus Peyton Shields and Kevin Stokes. The Honorable Judge Oscar Gilhorn presiding.”

Peyton and her lawyer stood side by side, as did Kevin and Jennifer. To their left, at the table closest to the empty jury box, was Charles Ohn and a young assistant district attorney. The rumbling behind Peyton sounded like a marching band, as several camera crews and at least thirty reporters rose to their feet to acknowledge the arrival of Judge Gilhorn.

“Please be seated,” he said from the bench.

The old courtroom filled with a brief shuffling sound as the spectators returned to their seats. Then silence.

Peyton gripped the armrests of her chair tightly. She didn’t know what to expect and wasn’t sure that her lawyer knew either. All Tony had said beforehand was that their arraignment would not be conducted in the usual perfunctory manner. Ohn had filed an emergency motion of some sort that required legal arguments.

“Let’s get the formalities out of the way first,” said the judge.

“How does defendant Shields plead?”

Peyton started to rise, but Tony was already on his feet and said, “Innocent, Your Honor.”

The judge peered out over his glasses, casting a reproving look.
“A simple ‘not guilty’ will do, Mr. Falcone.” He glanced at Jennifer.

“And Mr. Stokes?”

“Not guilty,” she said.

“Mr. Ohn, would the government like to be heard on the question of bail?”

The prosecutor rose and said, “Release on their own recognizance is acceptable to us.”

The judge did a double take. “On a second-degree-murder charge?”

“These are defendants with roots in this community. We don’t regard their risk of flight as substantial.”

Tony leaned toward Peyton and whispered, “Remember what I told you. He wants you two together.”

The judge said, “I assume the government’s position is fine with the defense?”

“Fine,” the lawyers said in unison.

“Done,” said the judge. “Now let’s move on to the meat of the matter. I received about an hour ago an emergency motion from the D.A.’s office. At first blush I thought it was a rather transparent effort to overdramatize the arraignment. But as I read it, I realized that it raised an extremely important point that, in all candor, is a bit of a pet peeve of mine. Mr. Ohn, if you would please.”

“Gladly,” he said. “As the court is aware—and as practically the entire city of Boston is aware—Mr. Falcone held a press conference last night. The subject of that conference was, frankly, the alleged innocence of his client, Peyton Shields. He discussed polygraphs that have been leaked to the press, disclaiming all responsibility for the leak.”

The judge interrupted. “That’s not the point of your motion, as I read it.”

“No, Your Honor. That just sets the context. The basis for our motion is the parting comment he gave in the news spot. Mr. Falcone’s exact words were, and I quote: ‘I’m not afraid to tell you that my client, Dr. Peyton Shields, has told me from the very beginning that she is innocent, and I believe her.’ End quote.”

Tony looked at Peyton, as if to say
So what?

“Now, if you analyze that statement closely, you realize that Mr. Falcone has done two things. One, he has revealed in a public setting something that his client told him in a privileged and confidential conversation. Two, he has stated in a public setting that he believes what she told him. It is our position that by doing that, he has waived the attorney-client privilege.”

“What!” Tony shouted.

The judge gaveled him down. “Mr. Falcone, please.”

The prosecutor continued, “The law on the attorney-client privilege is very clear on this point. If any portion of a privileged conversation is voluntarily revealed to the public, the entire communication must be exposed. A lawyer cannot selectively reveal the favorable portions of a conversation and conceal the unfavorable portions that relate to the same subject matter.”

The judge nodded, seeming to agree. “And the remedy you seek is what?”

“A complete waiver of the privilege. Our motion seeks copies of all notes of conversations Mr. Falcone had with his client. If he believes that his client is innocent, and he chooses to blab about it in public, then the government is entitled to discover the basis for his belief.”

“This is preposterous!” said Tony. “It’s pure grandstanding.”

“
Sit down
,” the judge said.

Tony retreated to his seat.

Peyton tried not to look horrified, but she was certain she was failing. She could almost feel the camera lenses tightening in on her from the press gallery.

The old judge leaned back, as if to pontificate. “Some people say I’m old-fashioned. Some people say I’m just old. But in my day, lawyers had a certain professionalism. I have nothing against lawyers who put on a vigorous defense in the courtroom. What I hate, quite frankly, are the flamboyant showmen who have a penchant for turning every criminal trial into a media circus.”

He leaned forward, glaring at Tony. Peyton still felt as if the words were directed at her.

“I am sick of watching criminal defense attorneys on the news every night vouching for the innocence of their clients. In my view, a lawyer should never vouch for his client. He should only represent and defend him.”

Peyton glanced behind her. The press corps was eating it up.

The judge said, “I realize that Mr. Ohn’s motion is a bit aggressive. I don’t think it’s fair to prejudice Dr. Shields because of some boneheaded ploy her lawyer pulled. The court will deny the motion. But, Mr. Falcone, consider yourself gagged.”

“But, Your Honor—”

“Gagged,” he said, making a zipped-lip motion across his mouth. His gaze shifted toward Kevin’s lawyer. “And as for you, Jennifer. I’ve known you since you were a law student interning at the district attorney’s office. I’m surprised you would condone this kind of nonsense.”

She shrank for a moment, then her face turned red with anger—at Tony. “It won’t happen again, Judge.”

“I certainly hope not. Now, enough said about that.” He raised his gavel, ready to adjourn. “If we can all agree to act like adults from this point forward, then we are—”

“Judge,” said the prosecutor, just in time to stop the gavel from falling. “There is one more point I’d like to raise with the court at this time.”

“What is it?”

“It has to do with the evidence we obtained through the execution of the search warrant.”

“Is that something we have to address now?”

“I would just like to alert the court to the potential problem we’ve discovered.”

“Problem?” said the judge.

“The search warrant that was issued identified two items. A metal box and the gun that it normally contained, both of which belonged to Dr. Shields. We retrieved the box, but the gun wasn’t in it.”

The judge just shrugged. “Win some, lose some.”

“That’s really my point, Your Honor. We really hit pay dirt. The gun wasn’t in there, but something else was.”

Tony jumped to his feet, “No way, Judge. No way can they use a search warrant to obtain evidence that is not listed in the warrant. The warrant listed the gun and the box. That’s it. Anything else they took out of that house is inadmissible.”

“You don’t even know what the evidence is,” said the judge.

“It doesn’t matter,” said Tony. “If it wasn’t a gun or a metal box, the government can’t use it.”

The judge asked, “What did you get, Mr. Ohn?”

Ohn seemed to swell right before Peyton’s eyes. He glanced at the judge, next at the press. Finally, his gaze rested right on Peyton. “Communications between Dr. Shields and the victim, Gary Varne.”

Her heart raced. She had no idea what he was talking about.

“You might call them love letters.”

Tony jumped in. “This is totally out of order, Judge. We haven’t seen the letters, we don’t know what letters he’s talking about.”

Peyton wanted to grab him, tackle him, and tell him there were no letters. There couldn’t
possibly
be love letters.

Kevin had yet to even look her way, but she could see the shock registering on his normally stoic profile.

“Well,” the judge grumbled. “I have to agree to some extent with Mr. Falcone. This does appear to be an issue that should be fully briefed before the court makes any kind of decision about the admissibility of the letters. Of course, assuming they’re relevant.”

“Oh, they’re relevant, all right. The government intends to prove that Mr. Varne and Dr. Shields were having an affair, which led to Mr. Varne’s murder. These letters are rather convincing evidence of that. They are a yearlong trail of communication. And they are, shall we say, sexually explicit.”

That got a reaction from the press. The judge banged his gavel, “Order, please.”

Tony said, “We need to see these letters.”

“That only seems fair,” says the judge. “Mr. Ohn, can you please provide copies to the defense?”

“I have two sets of copies right here,” he said. He crossed the courtroom and dropped two large envelopes at the defense table. It seemed strategic to Peyton, the way he dropped both sets right in front of Kevin. Peyton tried to catch her husband’s eye. She’d been trying since the words “love letters” were first uttered. But Kevin wouldn’t even look at her.

The prosecutor said, “I should point out that these are not handwritten letters in the conventional sense of the word. They are printed transcripts of chat-room conversations that were conducted by computer over the Internet. Some would call it cybersex.”

The judge rolled his eyes. “Now you’re really over this old man’s head.”

“The technical computer stuff isn’t all that important, Your Honor. The point is that Dr. Shields collected printed copies of these communications with the victim and hid them in a secret place, much the way lovers have been hiding their love letters for centuries.”

“Well, submit these letters or transcripts with an appropriate motion, and the court will make its decision. Anything else?”

“Nothing here,” said Ohn.

“No,” said Tony.

“We’re adjourned.” He banged his gavel and headed out a side exit to his chambers. The rumble from behind signaled the charge of a hungry media. They stopped at the rail, twenty feet away from the defense lawyers and their clients. Peyton didn’t even want to turn around, though she was already being pelted with questions from the other side of the rail.
What about the letters? What did you write?

At Tony’s insistence, the four of them huddled at their table. He spoke in a coarse whisper. “We’ll be mobbed on our way out. I want us single file, close together. Jennifer first, followed by Kevin, Peyton, and then me. And, Kevin, you are going to hold Peyton’s hand as you lead her out of here. Understood?”

He seemed ready to protest, but Jennifer answered, “Understood.”

“Don’t answer a single question from the media, and don’t
look worried. But the minute we get back to my office, I want a full explanation of those letters.”

“So do I,” said Kevin.

Peyton felt harpooned.

Jennifer started walking. Peyton extended her hand. Kevin took it, though his touch conveyed no warmth.

Single file, the four of them collided with a loud and overheated press. Most of the cameras were aimed at Peyton. It was difficult to hear any single question above the shouting and commotion, but the loudest ones dealt with the alleged affair.

“Is it true?”

“Did you love him?”

“Did your husband know about it?”

Keeping her head up, she struggled to look past the frenzy and show no reaction. Still, it was impossible not to make eye contact with the really aggressive ones who got right in her face. Each time her eyes locked onto one of those excited expressions—even if only for an instant—it only confirmed her sinking realization that the prosecutor had delivered to the wolves exactly what they’d wanted.

Her.