Missing Justice (19 page)

So far, so routine. And so hopeless. It was the next part of Slip’s request that must have reflected the forty-minute recess.

“Regardless of defendant’s custody status pending trial, Mr. Jackson does not waive his right to a prompt hearing of probable cause. We request that a preliminary hearing be scheduled at the earliest possible date so that my client can contest the charges immediately. He sees no need to await a trial date.”

Levinson was neither impressed nor amused. He took off his glasses, scratched his bald head, and said, “You’re kidding me, right?”

Most people have heard of prelims from the high-profile California cases. They’re mini-trials to determine whether there’s sufficient evidence to hold the defendant over for trial. The federal system and just about every state uses the less burdensome, more secretive grand jury process instead. Oregon, as usual, had forged a third way: a theoretical procedure for conducting preliminary hearings that never actually took place. As a result of confusing court decisions and years of local practice, indictment by grand jury was the routine.

Jackson did not, however, want to do this the routine way.

“I would never kid, your honor.” Slip was good at handling cantankerous judges.

“You’ve explained to your client that the State’s burden at a preliminary hearing is considerably lower than at trial?” Levinson asked. The question was more for Jackson’s sake than Slip’s. “That all the State has to do is show probable cause? And that the Court is required to draw every possible inference in favor of the State?”

“I’ve explained that all to him, your honor. Mr. Jackson’s highest priority is to be with his children. He is afraid he’ll lose his kids if he doesn’t nip these charges in the bud. He knows it’s an uphill battle, but he wants at least to have that chance. As your honor well knows, the grand jury process is even more lopsided.”

The prosecutor runs the show with the grand jury. No judge, no defense counsel, no defendant.

“Your honor,” I said, “I already have this case scheduled for grand jury. He has no right to a preliminary hearing.”

“But he’s not indicted yet, is he? And now he’s asking for a prelim.”

I tried to explain that wasn’t how it worked, but Levinson wanted to keep his docket moving.

“I don’t see the harm, Ms. Kincaid, and I don’t want to leave all these people waiting here while the two of you argue about it. Friday, JC-Three, at nine o’clock. I assume you can make it, Ms. Kincaid?”

“Of course,” I said, since that was the only acceptable answer to a question that had used you in the collective sense. Judges assume prosecutors are fungible. If I had open-heart surgery scheduled for that morning, I’d have to find someone else. Fortunately, I did not.

Neither did Slip. “I can clear my calendar, your honor.”

“Very good. As for bail, nice try, Mr. Szlipkowsky, but, unh-unh, I don’t think so. Remanded.”

I told myself there was nothing to worry about. Beating charges at a prelim is unheard of.

I passed Russ on the way back to my office. I was beginning to think the man lived in the hallway.

He looked at his watch when he saw me. “You spent an hour and a half over there to do one arraignment. I need to find you some more work, Kincaid.”

I told him about Jackson’s request for a prelim and the Friday hearing date.

“You’ve got to be fucking kidding me. We don’t do prelims.”

“Try telling that to Levinson while he’s behind on his docket.”

“Well, we can’t be ready to put on evidence by Friday morning. Did you ask for more time?”

“No.”

He looked frustrated.

“It would’ve been pointless, Russ, and it’s just a prelim. Weapon, threats, paint, statements. Done. It’ll take two hours.”

“Let’s see,” he said, ticking my points off on his fingers. “Hammer: no blood tests yet; threat: every judge gets them, including whoever you draw for the prelim on Friday; paint: you need an expert or else Jackson’s just a laborer with a can of beige paint; and statements: you better hope they come in. I know your guys were out there just for the warrant, but a lot of judges will say Jackson was under arrest the minute the cuffs came out.”

Jackson hadn’t yet been Mirandized when he admitted knowing that the police were there about the paint. His statements would be admissible only if the court believed that the police had handcuffed Jackson to restrain him temporarily during the search rather than to arrest him.

“You worry too much,” I said. “The threats are motive, and I’ll line up a paint expert. That’s enough for probable cause right there, and I guarantee you the crime lab will find a blood match on the hammer. The only problem is I’m supposed to have discovery to Slip by the end of the day. There’s some evidence suggesting the victim was having an affair, and I think we need to turn it over.”

I had been hoping to have more time to mull over Tara’s revelation, but Jackson’s request for the quick prelim forced the issue. The failure to turn over exculpatory information could lead to a reversal down the road.

“Christ.” Frist rubbed his temples. “Exactly what kind of evidence are we talking about?”

I told him about Tara’s visit. It was more than mere rumors; according to her sister, Clarissa admitted she was contemplating divorce because she was in love with someone else.

“You don’t know who the someone else was?” he asked.

“Not with any certainty, but we’ve got a theory.” I told him about the calls to T. J. Caffrey.

He started shaking his head before I had even finished. “I’m not sure I’d tell the defense about any of that. Even if she was having an affair, there’s nothing concrete tying it to the murder, and you don’t know for certain who the guy was. A few phone calls don’t mean anything.”

I understood his argument. The rules on disclosure allow the prosecution to hold back just about anything that’s arguably innocuous. But with the growing numbers of innocent men being freed from prison in cases where the prosecutor sat on information, I tend to fall on the side of broader disclosure.

I explained my analysis to Frist. There was both physical and testimonial evidence suggesting that the victim may have been having an affair, and the phone records showed that the calls between Clarissa and Caffrey made up the bulk of her cell phone usage. I wouldn’t turn Caffrey’s name over to Slip directly, but I’d give him the phone records and a report about Tara s statement so he could decide for himself if they were relevant.

“Suit yourself,” Frist said, “but if this case goes to trial, and he tries to turn your victim’s supposed boyfriend into his one-armed man, you’ll regret it.”

“You’re dating yourself. Satanic cults are the ‘other guys’ of late.”

“You’re pushing your luck, Kincaid, but I’ll go along with you anyway. Duncan’s going to want to call Caffrey as a courtesy,” he said resignedly. “I’ll tell Duncan; you take care of the husband. We don’t want him learning about this at the prelim.”

Great. Getting information to Townsend meant a phone call to Roger. In the hierarchy of pleasantries, I ranked it just beneath walking a plank of nails into a shark tank.

“And, speaking of the prelim,” I said, “tell me I can do it without you.”

“I’m afraid I’ve got no choice, Kincaid.”

I started in on my spiel about how wasteful it was to use two attorneys on a prelim, but he interrupted. “No. I meant I don’t have any choice but to let you go solo. I’ve got thirteen victims coming in on a sex-abuse grand jury. Some chick who ran a home day care didn’t notice her boyfriend diddling all the kids.”

I never wanted to get used to these cases.

“I’ll do it by myself, then. Don’t worry. It will be fine.” I started to walk away, then realized I’d forgotten something.

“Oh, can you do a death penalty meeting tomorrow at two? Duncan told me to get everyone together.”

“Yeah, I’m clear. And, for the record, Sam, I would have let you handle the prelim anyway. You’re doing a good job.”

An unqualified compliment at the District Attorney’s Office? For me? Either Frist was a different kind of supervisor or I was becoming a real jerk.

I picked up the phone to call Roger but couldn’t bring myself to ignore the message light on my phone.

It was Chuck. “Hey, babe. Good news back from the crime lab. Give me a call.”

I hate those messages that keep you hanging. Either tell me what you need to tell me or ask me to return the call. I was eager for the lab reports but felt obliged to get the call to Roger over with.

I dialed the first six digits of his number before tapping on the handset for a new dial tone. A call to Susan Kerr would allow me to procrastinate a little longer. I still needed to talk to her about Tara’s suspicions that Clarissa was seeing someone else, not to mention her little visit this afternoon from Townsend.

When I identified myself, she jumped right in.

“I’m so happy you called. I was going to see if there’s anything I can do after Townsend’s press conference last night. I was in bed by then and couldn’t believe what I saw in the paper this morning. I didn’t even know he had a lawyer.”

“Neither did we.”

“Would it help if I called someone at the mayors office to support the bureau? I know I was a bit critical of how the police handled the situation with Townsend Monday night, but I think you’re all doing a great job.”

I assured her that I appreciated the offer, but there was no need for her to pull strings. “But, since you brought it up, do you have any idea why Townsend would rail against us like that?”

“No, and it shocks me.”

“He didn’t mention it when he was at your house this afternoon?”

Wow. I hadn’t planned on blurting it out that way. Very Perry Mason.

Unfortunately, it didn’t have a Perry-Masonian effect. Instead of breaking down and sharing a lifetime of secrets with me, Susan Kerr made me feel like shit.

“Are you actually having Townsend followed or something? My God, are you watching my home? Maybe Townsend was right to rail against you, as you put it.”

I immediately launched into a back pedal, explaining that I had passed her house on my regular run and happened to notice his car.

“If you had simply asked like a regular person instead of ambushing me, I would have told you all of this anyway. What I was about to say was that I can only chalk up the press conference to the fact that Townsend just hasn’t been himself since well, since, Clarissa was found. He’s been drinking more, and sometimes he’ll start rambling incoherently. My best guess is that someone from work might have suggested it, because I know it didn’t come from me or Clarissa’s family.

“As for his visit this afternoon, if you must know, I initially suggested it, hoping to pull out some of the old Townsend. When he’s in work mode well, everything else sort of fades away. I’ve been helping him with some fund-raising for the hospital’s pediatric wing and thought it might help him to put his mind back into that for the afternoon. But of course he told me about the arrest, and one thing led to another. I wound up crying away another afternoon, while he sat like a zombie on the sofa. So, no, we did not talk about the press conference.”

I didn’t know what to say. I floundered around for an appropriate apology, finally lamely offering that I was sorry for her loss.

She sighed. “I know. I can tell you care, and I do appreciate it. My God, I thought it was hard when I lost Herbie, but to have a loss like this I don’t know how Townsend will ever get over it. Quite honestly, I’m beginning to question his stability. He doesn’t seem to be thinking straight.”

Her worries about Townsend made it even harder to share what I’d heard from Tara. I omitted T. J. Caffrey’s name for the time being.

“Boy, you are full of good news today, aren’t you?” Her attempt at levity didn’t change the fact that she wasn’t having any of it. “I know I’ve already told you this,” she said, “but Clarissa and Townsend had a perfectly normal marriage. Well, about as normal as it can be given how hard the guy works. But, trust me, if there was something wrong, Clarissa would have told me. And, my God, if she was cheating ” She laughed at the mere thought of it. “She’d definitely tell me before she’d say anything to Tara.”

“I’m just trying to reconcile Tara’s information with everything else we’ve heard,” I explained. “Why would Tara make something like that up?”

“Perhaps she misinterpreted something Clarissa said. We all vent about our husbands now and then, don’t we? And Tara can be very melodramatic.”

“She seemed fairly certain about Clarissa’s meaning,” I said.

“Just because she was sure doesn’t make her right. And even if Clarissa was fooling around which I’m sure she wasn’t what use is there in bringing it up now? I understood from Townsend that you had a mountain of evidence against this Jackson guy.”

“We do,” I said, “but we still need to cover our bases. I don’t want the defense springing something on us down the road because we were afraid to ask the tough questions.”

“Well, you’ve asked them, and my answer hasn’t changed. Clarissa wasn’t like that, and I hope you’ll leave it at that. If the police go to Townsend with this, it could send him right over the edge.”

Tara had expressed the same concern. Townsend might be the one in charge at the hospital, but apparently, in other areas of his life, those closest to him felt the need to be strong on his behalf.

“I know you’re worried about Townsend,” I said, “but I hope you’re not holding back information you think would hurt him. Tara already told me that’s why she initially didn’t say anything about this.”

“I am most definitely not holding back with you. If anything, I feel a little guilty for mentioning Townsend’s irrational behavior. But I don’t want to hear anything else about Tara’s little suspicions. This son of a bitch Jackson killed my best friend. You just told me a second ago that it was basically a sure thing. But instead of anyone asking me about her life or what she was like or how wonderful she was, you just want to make sure she was a good wife.”

I did my best to explain how important the questions were to the case, and she did her best to say she understood. But I nevertheless hung up feeling like the worst kind of bottom feeder.