Prime Witness (32 page)

She’s into the next motion, reads for several seconds, agitated hissing under her breath.

“
Pendajo
,” she says. In the Catholic Mission school of my early childhood, little Mexican children often used this word as a pejorative for others. I do not know its literal translation, but I know it is not good.

“His father’s a
puta
in drag,” she says. Lenore’s not talking about our case, but Adrian’s ancestry. In moments of fatigue and stress, it seems her dark Latin temper takes hold. An edge of adolescent hardness slips from beneath the educated veneer. She looks at me to see if I have noticed.

I tell her to relax. “Not the first time a lawyer’s been had. It won’t be the last.” She blames herself, I think, for being taken in by Chambers’s sleight of hand with the shrinks.

I smile at her, a little encouragement. “Face it. It was a smooth move.” I’m talking about Adrian’s feigned strategy of delay that suckered us so well.

She fixes me with a piercing stare, olive eyes.

“About as smooth as a barbed-wire enema,” she says. Lenore is not magnanimous in defeat. Having made her the fool, I think Chambers has now joined Roland on her short list, people with matching dolls, into whom I suspect she may be sticking pins at night.

“I should have seen it coming,” I tell her. I try to lighten her spirits by taking much of the blame myself. She shrugs this off and goes on reading the motions.

When Chambers jammed us on time for the preliminary hearing, I thought he was just testing our evidence, our ability to obtain a quick indictment. Since all that hung in the balance then was the perfecting of formal charges, there was little risk to his move, not much downside. I did not see it, his play to shorten time, as some grand strategy.

Lenore tells me that she believes the defense, Iganovich, will pay the price, that it was not a smart move to shoot for an early trial date, especially now that they have bought Ingel as the trial judge.

I’m not so sure she’s right, but I don’t say this. In measuring a case I am told that Adrian is a quick read. A mind that is a vacuum for facts, he sifted these and made an early decision: that time was not on his side. In part this is dictated by the evidence of our case. It is all physical and circumstantial in nature, cut pieces of cord, metal stakes, and the location where they were found, a vehicle owned by the defendant. These you can touch, tangibles that will not die, or fade over time, like a witness or his memory.

The passage of time is only likely to make things worse for them. It may bring the production of a witness, the vandal who smashed the window of the van, who may have seen the contents in the vehicle, who can testify that they were not placed there by some intervening third party.

Delay may find the Russian linked to the other murders in Oregon or down south.

With time may come the wallets and purses of the Davenport victims, their elusive documents of identification, and a trail that could lead back to Iganovich.

Then there is the riddle of the Scofield murders, a similar scenario with a different perpetrator, a difficulty for our case. In time this too may be solved. This crime, for which I suspect Adrian can produce a credible alibi for his client, if still unresolved at the time of trial can be exploited, used to move shadows of doubt across the stage in his unfolding drama of defense.

In all this there is one certainty: Adrian Chambers is no fool. He has perceived correctly that, in the trial of this cause, time is not his friend.

Pretrial motions are the first skirmish lines thrown out by lawyers in preparation for the full-blown battle of open trial. They are important because they set the groundwork for the conflict that follows. Lose a motion and you may find yourself stripped of vital evidence, doing combat hobbled on one leg, or missing an arm.

Today Lenore and I are meeting in-camera, behind closed doors, with Judge Fisher, out of the presence of glaring lights, and the press, and more important without the attendance of Adrian Chambers. Only the court clerk is here to take down our words.

This is what is known in the law as an ex parte conference with the judge, generally forbidden except in specific cases.

Fisher has agreed to hear all the pretrial motions in our case, a concession to Ingel.

“What’s the problem here?” he says. “This could be exculpatory evidence.”

Fisher’s talking about the witness in the trees at the Scofield killings, our prime witness. Adrian has thrown a net over this information by the breadth of his discovery motion.

We are here without him today, courtesy of a crack in the law, an initiative passed by voters and generally considered the bane of the defense bar. It allows us to talk privately with the judge on the narrow issues of police informants and witnesses.

“It may be exculpatory, your honor, but we don’t know. We have no idea as to the identity of this witness, or for that matter whether he or she, whoever they were, really saw anything.”

“It’s part of an ongoing investigation,” says Lenore. “We shouldn’t be compelled to disclose the information.”

We are double-teaming Fisher today, a last-ditch effort to keep Chambers away from this stuff, so that he cannot use it to confuse a jury.

“So let me get this straight,” says Fisher. “You’re not arguing that the evidence this witness might offer is irrelevant?” he says.

Lenore bites her lip. She’s not ready to concede the point.

“We don’t know whether it’s relevant or not,” I say. “We have no idea what he saw, or for that matter whether he saw anything.”

Fisher swivels in his big black tufted chair, head resting back, taking in the track lights on the ceiling while he thinks.

I don’t give him too long.

“A defendant’s not entitled to know the identity of an anonymous informant not known to the police,” I tell him. “
People v. Callen
.” I cite him the case.

“But this is not an anonymous informant,” he says. “It’s not just the identity of the witness that’s in question, but whether the witness has any information relative to your case.”

“That’s true,” I say.

“So you’re asking me to mask from the defendant the very existence of this potential witness?”

“We are, your honor.”

He’s shaking his head. “No,” he says. “That goes too far.”

I argue with him, tell him there are real risks here.

“There are circumstances surrounding the location of the witness, what he was doing at the scene, that will not only imperil the investigation,” I say, “but perhaps put the life of this witness in jeopardy.”

Fisher looks at me.

“How could it endanger the witness?” he says.

“We have no idea who the killer or killers are,” I tell him. “They therefore know considerably more than we do. How much they know, the motives for these murders, we have no idea.”

“And?” he says.

“By disclosing the specifics—the circumstances surrounding this potential witness in open court, what we believe was happening up in that blind—with these details the killer may be able to find our witness before we can.”

I watch as the consequences of this argument settle on Fisher. He is no longer shaking his head. Then he comes back.

“But the defendant here.” He’s talking about Iganovich. “He has a right to any evidence that could be viewed as exculpatory, anything that might be useful in proving his innocence. The law demands that he be given this. How can I withhold it?” he says.

“Iganovich is not charged with the Scofield murders,” says Lenore. “So where is the relevance?” she says. Lenore cannot resist.

“Give me a break, counselor.” Fisher fixes her with a stare. “It’s not a quantum leap to argue that this other killer, whoever murdered the Scofields, is the Putah Creek killer, that the police have the wrong man in Mr. Iganovich.” He flexes an eyebrow. “If that’s your pitch to the jury, a witness who may have seen this other killer becomes rather pivotal to your case. Don’t you think?” he says.

It is the thing I like best about Lenore. She does not cow easily.

She looks him in the eye. “No, I don’t,” she says. “Until Mr. Chambers can prove that the witness saw something,” she says, “that he actually has evidence relevant even to those killings, until then,” she tells him, “the identity of the party or parties in the trees, and all of the circumstances surrounding them, are irrelevant.”

This stops Fisher in his tracks. He makes a face like maybe she’s right, a hook on which to hang some qualified order.

“Still, how can he prove the relevance of what this witness may or may not have seen, if you have a monopoly on all of the information?”

I sense that we have hit a high point in our argument, as much of a concession as we are going to get from Fisher. It is time to play Solomon, if necessary, to offer up the division of the infant.

“We are searching for the witness. Every resource we have,” I tell him, “is on this case. I would propose a compromise,” I say. “A qualified order, limiting what we are compelled to turn over to the defense on this one issue. Allow us to mask the information on the witness, the blind in the trees, until we have identified and sequestered this person, taken him into custody, and discovered what it is he has to say.”

Fisher makes a face, like close, but no cigar.

“We have to make some disclosure to the defense,” he says.

“Fine, we tell them there is a potential witness, but no details, none of the circumstances surrounding the witness, nothing that might be used to ferret out his identity.”

Fisher is silent, sitting, musing in his chair. Then slow nods, like maybe this is not a perfect solution, just the best we may be able to do for now. For the moment I think we have dodged a bullet.

Chapter Twenty-six

I
have spent the better part of a week on the phone, eating so much crow that I now spit feathers when I talk. These calls were placed to Herb Jacoby, the Crown Counsel in Canada. I have pleaded with him for cooperation, his help in producing one of the two security guards who arrested Iganovich.

Jacoby is not exactly the soul of benevolence these days, still nursing his anger over the abduction of the Russian. I have been applying apologies like a shaman’s balm to his sovereign pride, assuring him repeatedly that my office, our government, had nothing to do with this escapade, that it was a private self-help venture of Kim Park.

In the scheme of things, Iganovich’s statements regarding the abandoned van at the time of his arrest in Canada could be important to my case. I want this evidence available for trial. Chambers has thrown a net over it in one of his myriad motions to suppress.

This morning Judge Fisher looks down at the defense table and Adrian Chambers.

“A lot of paper,” he says. He’s talking about the small mountain of defense motions.

“I hope they’re all necessary,” he tells Chambers.

“Every one of them, your honor.” This from Adrian.

“Emm.” Fisher is not convinced.

“Are we ready to proceed?” he says.

Nodding heads from both tables.

“Fine,” says Fisher. “Let’s get to it.”

Chambers’s motions contain more redundancies than the failsafe systems on the space shuttle, a lawyer’s grab bag of backup arguments: There was no probable cause for the arrest; his client was not Mirandized or given the Canadian equivalent before he opened his mouth; the statements were coerced in violation of due process.

While a warrant for murder was issued for the Russian’s arrest, he was originally detained in Canada on charges of shoplifting. For this reason, the fact that the warrant did not match the charges of arrest, it is deemed to be a warrantless arrest. This means I have the burden of going forward, presenting my case first.

I outline the issues for the court. We will now argue on turf that I have created. I call my first witness.

Reginald Beckworth is the picture of a proper British constable, even though he is only private security. Precisely trimmed mustache and dark sideburns, a tweed wool suit and vest, he is better dressed than most lawyers and half of the judges in this courthouse. Eight years in corporate security, he is part of mid management with the Hudson Bay Company, heading security for one of their larger stores.

The witness identifies Iganovich as the man he and his partner stopped on suspicions the day of the arrest.

“He made a good number of furtive gestures with his hands to the inside linings of his clothing,” says Beckworth.

“So you thought he might be concealing merchandise?”

“Objection, leading.” Chambers is on his feet.

“Let me rephrase,” I say. “What did you conclude by these moves on the part of the defendant?”

“That he might be concealing merchandise,” says Beckworth.

“Thank you. Now tell me, during the time of these observations, who employed you? Who was paying your salary?”

“The Hudson Bay Company.”

“Have you ever been in the employ of any official police agency?”

“Twelve years with the Vancouver Police Department, but I retired,” he says, “eight years ago.”

I want to get this out early, his prior police employment, so that it is not later exploited by Chambers. I open the issue like a book to the court so that it does not appear that we have anything to hide.

“So at the time of this detention, when you stopped Mr. Iganovich, you were solely in the employ of the Hudson Bay Company?”

“Correct.”

“I take it that this was true of your partner as well, that he was employed exclusively by the Hudson Bay Company?”

“That’s correct. The company has its own in-house security, with its own training program.”

My object in this line of questioning is straightforward. To overcome Chambers’s contention that these guards were acting as agents of the state, I must place them clearly in the private sphere, beyond the pale of any state action.

“At the time you stopped Mr. Iganovich, did you know that there was a warrant for his arrest issued in this country?”

“No, I did not.”

“Did you have any reason to believe that he had committed any crime other than the suspected shop theft for which you sought to detain him?”