Violent Crimes (7 page)

“June sixth.”

“And you knew that because you were heavily involved in investigating the case?”

Hotchkiss didn't answer.

“Well, Detective?”

“I did know the date of the fight.”

“Mr. Beatty arrived at the tavern on June sixth around five p.m. and was arrested there and transported to jail, where he spent the night?”

“Yes.”

“I'm handing Detective Hotchkiss defense exhibit seven, a copy of the affidavit in support of the search warrant that was issued for Mr. Beatty's house,” Amanda said. “Please read it, Detective.”

Amanda waited until Hotchkiss was through.

“In the affidavit, what dates and at what times does Carol White claim she bought heroin from Mr. Beatty.”

Hotchkiss stared at the affidavit. When he answered, there was a slight tremor in his voice.

“She said that she bought heroin from Mr. Beatty after dark on the evenings of May ninth, May seventeenth, June sixth, and July fifth.”

“Is it dark in early June at five p.m.?”

“No.”

“You knew that Mr. Beatty arrived at the Lookout tavern around five p.m. on June sixth, did you not?”

“Yes.”

“And he was in the tavern or in jail after five p.m. on the evening of June sixth, wasn't he?”

“Yes,” Hotchkiss answered grudgingly.

“When you were standing on Mr. Beatty's front porch just before the police entered his home, Officer Harold Fernandez was standing between you and Detective Nowicki, was he not?”

“Yes.”

“Officer Fernandez testified under oath that you told the detective that there was something wrong with a date in the affidavit. What did you mean by that?”

Hotchkiss cast a quick look at Larry Frederick.

“The district attorney can't help you, Detective,” Amanda said.

Judge Chang leaned forward and gazed at the witness intently.

“When you saw Carol White's claim that she had purchased heroin from Mr. Beatty after dark on the evening of June sixth, you knew that could not be true, didn't you?” Amanda said.

“I . . . I did have some concerns.”

“Were you sufficiently concerned to tell Detective Nowicki, as Officer Fernandez testified, that there was a problem with a date in the affidavit?”

“I . . .” Hotchkiss looked grim. “Yes.”

“And this information was known to you after the warrant was issued and before entry was made?”

“Yes.”

“No further questions.”

Judge Chang looked concerned. “Any cross, Mr. Frederick?”

The prosecutor looked upset. “May I have a brief recess, Your Honor. This line of questioning has come as a surprise.”

“I'd object to any recess,” Amanda said.

“This is very disturbing, Mr. Frederick,” Judge Chang said.

“I don't see how it has any bearing on the validity of the
search,” Frederick said, but it was obvious that he was flailing around.

“To the contrary,” Amanda answered. “This is a clear case for a shadow challenge.”

Judge Chang's brow furrowed. “I'm not familiar with that term, Miss Jaffe.”

“That's probably because an opportunity for this type of challenge to a search rarely presents itself. The term comes from a poem by T. S. Eliot. ‘Between the idea and the reality, between the motion and the act, falls the shadow.'

“Let's assume that the police get a search warrant that's completely bulletproof; there's clear probable cause stated in the affidavit. Then between obtaining the warrant and executing it the police learn something that undermines probable cause. An easy example is a search warrant issued in a terrorism case during a Jewish holiday. In the affidavit in support of the warrant the police swear that the home owner is a Muslim. Then the police arrive at the house and see a mezuzah on the door and a menorah in the window. In a situation like that the police are obligated to go back to the judge with this new information so the judge can decide if probable cause still exists.”

“Do you have any case law in support of this theory?” the judge asked.

“I do. Close to home is the Washington case of
State v. Reichenbach
. The police obtained a warrant based on information that the defendant was going to buy drugs, but after the warrant was issued the police were told that the defendant had been unable to obtain the drugs. The warrant was executed anyway and the court held that the officer's failure to inform the issuing magis
trate of this new information rendered the warrant invalid at the time of its execution.

“In
United States v. Marin-Buitrago
, the Federal Second Circuit stated, ‘Certain restrictions are placed on the execution of search warrants to ensure that probable cause, as well as veracity of the information in the affidavit, exists when the warrant is executed.' And the Sixth Circuit held in
United States v. Bowling
that probable cause must exist when the warrant is issued
and
when it is executed. The court said that when new facts come to light, the officers have an obligation to inform the issuing magistrate of the change of circumstances.”

“Mr. Frederick,” Judge Chang said, “I'm very concerned that Detective Hotchkiss did not insist on telling Detective Nowicki that he had good reason to believe that one of Miss White's statements was not true before the warrant was executed.”

“That was only one statement out of many. Miss White may have made a mistake about that one date.”

“That's true, but Mr. Beatty was not home so there was no urgency to enter. Detective Nowicki could have phoned the issuing magistrate to see if this new information would change his mind about probable cause.”

“No one knew where Mr. Beatty was and when he would return. He could have been lying in wait inside the house.”

“Your Honor,” Amanda said, “if Mr. Beatty was inside no one would have been in danger if the entry wasn't made, and the entry could still have been made if Mr. Beatty showed up before the warrant was executed if the magistrate told Detective Nowicki to go ahead after he'd been apprised of the lie in the affidavit.”

Larry Frederick started to say something, but Judge Chang
held up his hand. “Give me a minute to think,” he said, and the attorneys sat down.

“What is he going to do?” Tom Beatty asked anxiously.

“I'm not sure,” Amanda answered. “I've made a good point but I could also argue the other side of the issue. It's a close one. Judge Chang will have to throw out all of the state's evidence if he rules for us. That's a tough call in a murder case.”

“I'm going to suspend this hearing until next week so you and Miss Jaffe can brief this issue,” the judge said. “And I want Carol White in this courtroom when we resume.”

Amanda stood. “Your Honor, will you rule on my motion for bail in light of this change of circumstances concerning the validity of the search?”

“I'm not going to decide bail now,” the judge said. “But I will hear your bail motion when we reconvene to discuss the validity of the search.”

“What happened in there?” Larry Frederick asked Alan Hotchkiss and Greg Nowicki as soon as they were in Frederick's office with the door shut tight.

“Greg came to me before he got the warrant,” Hotchkiss said. “He asked me if I wanted to be present when we searched Beatty's house. I read the affidavit for the warrant for the first time on the way and I was almost at Beatty's house when I saw the June sixth date. I didn't get it at first. Then, just before we went in, I realized that White couldn't have bought heroin from Beatty after dark on the evening of June sixth because he was in jail. I tried to tell Greg but he told me to wait because he was concentrating on the entry.”

“Is this going to screw up the arrest?” Nowicki asked.

“I don't know. I've never had an issue like this so I'll have to hit the law books.”

Then he looked at Nowicki. “What I do know is that we have to find Carol White.”

Two days after Amanda and Larry Frederick submitted their briefs, Judge Chang's secretary phoned Amanda and told her that the judge wanted her in his courtroom as soon as possible. This time there were not as many spectators but Amanda noticed Dale Masterson sitting on the last bench.

Tom Beatty was seated at the counsel table. Two guards were standing nearby. Alan Hotchkiss and Greg Nowicki were sitting at the other counsel table with Larry Frederick.

“What's going on?” Beatty asked when Amanda sat beside him.

“I have no idea,” she answered just as the judge took the bench.

“Let the record show that we are in court in
State v. Beatty
. Mr. Beatty and Amanda Jaffe, his attorney, are, as are Deputy District Attorney Larry Frederick and Detectives Greg Nowicki and Alan Hotchkiss.

“Mr. Frederick, please tell Miss Jaffe what you told me roughly one half hour ago.”

“A dead woman was discovered under the Burnside Bridge yes
terday morning. The woman has been identified. It's Carol White.”

Amanda was stunned. “How did she die?”

“A heroin overdose.”

“Was she murdered?” Judge Chang asked.

When Frederick answered, he sounded subdued. “There was some bruising on her arms, but the medical examiner says she can't say that Miss White was attacked. The first responders didn't see anything unusual, either. The ME's best guess is that she overdosed by mistake or committed suicide.”

“This doesn't change anything, Your Honor,” Amanda said. “My motion to suppress doesn't rely on Miss White's testimony.”

“I agree,” Judge Chang said. “Mr. Frederick, I asked you to bring the detectives with you because I have some questions I want to ask Detective Nowicki.”

“Detective,” the judge said once Nowicki was sworn, “I am very troubled by this case, and I need your answers to several questions to assist me in reaching a decision. In the affidavit in support of the warrant, you state that Miss White told you that the defendant told her that he was getting his heroin from a drug ring that included men he'd served with in Afghanistan who'd developed ties with warlords when they were stationed there.”

“Yes.”

“Did you find any information that supported her statement?”

“No.”

“I assume you have agents in the Drug Enforcement Administration that you talk to about cases.”

“Yes, Your Honor.”

“Did you ask any of them about Mr. Beatty and this alleged international drug ring?”

“I did, but they had no information about the defendant or the ring.”

“Miss Jaffe submitted a memo in support of her motion for bail in which she alleges that there is strong evidence that Mr. Beatty was set up. Is she correct that there was an absence of blood spatter at the crime scene?”

“That's correct,” Nowicki answered reluctantly.

“That would be inconsistent with Miss Larson's having been murdered on Mr. Beatty's property?”

“Yes.”

“So Miss Larson was most probably killed elsewhere and brought to Mr. Beatty's home after she was dead.”

“Yes.”

“And is there surveillance footage showing Mr. Beatty at the Masterson law firm on the evening you conducted the search?” the judge asked.

“Yes.”

“This supports Miss Jaffe's contention that the real killer lured Mr. Beatty to his office so the killer could plant the heroin and the body in Mr. Beatty's home.”

“He could have gone to the law firm to establish an alibi.”

“Miss Jaffe also alleges that her client's fingerprints were not found on the wrappings of the heroin you discovered in his basement. Is that true?”

“Yes.”

“Wouldn't that be odd if he was selling to a lot of people? Wouldn't he have to take the heroin out of the wrapping and put it in a baggie or bindle?”

“Yes. But he could have worn gloves.”

“Did you find any paraphernalia in Mr. Beatty's house that you would expect to find in the home of a drug dealer?”

“No.”

The judge shook his head. Then he looked at Larry Frederick.

“This case stinks to high heaven,” he said. “It smells of a setup.”

“Your Honor, we haven't discovered any reason why anyone would want to frame the defendant. With all due respect, you're overthinking this. We have witnesses who will testify that the defendant and Miss Larson quarreled a few days before she was killed. I believe that the defendant and Miss Larson were lovers who argued, with fatal results.”

“If I may, Your Honor,” Amanda said.

“Yes, Miss Jaffe,” Judge Chang answered.

“Mr. Beatty and Miss Larson were never lovers, and I challenge Mr. Frederick to produce a single witness who will testify that they were involved romantically. They did quarrel shortly before Miss Larson was murdered, but the reason for the quarrel also explains why someone would have killed Miss Larson and framed Mr. Beatty.

“Miss Larson's firm was trying to land a major client, but it was having financial problems. She suspected that someone in the firm was cooking the books to make its financial situation look better than it was. She told Mr. Beatty about her suspicions and asked him to help her uncover what was going on. He had just been arrested on the assault charge. He told Miss Larson he wouldn't help her because he was afraid of losing his job, and she got upset. That's why they argued. If Miss Larson was going to go public about financial fraud at the firm, there are several people who would have reason to want her out of the way. Several people
knew about Mr. Beatty's arrest for assault and Miss Larson and Mr. Beatty's quarrel, so he would be the obvious scapegoat.”

Frederick laughed. “Miss Jaffe's argument is preposterous. Masterson, Hamilton is one of the state's most successful law firms. And the idea that they would murder a partner to cover up a problem with their books is ridiculous.”

“Can you tell me that you have a witness who supports your theory that Mr. Beatty and Miss Larson were lovers?” Judge Chang asked.

“No, Your Honor. But we do have witnesses to the quarrel.”

“Can these witnesses say why Mr. Beatty and Miss Larson quarreled?”

“No. They quarreled in Miss Larson's office, so no one overheard what was said.”

The judge leaned back and closed his eyes. When he opened them he looked very disturbed.

“I wish some other judge had this case,” he said, “but I'm stuck with it and I have to do what I think is right. I'm granting Miss Jaffe's motion to suppress. Carol White was a heroin addict with a pending case. She had every reason to lie to Detective Nowicki, and we know that she did lie about buying heroin from Mr. Beatty on at least one of the dates in the affidavit. Now she's dead under suspicious circumstances and can't be questioned under oath.

“Furthermore, we know for a fact that Detective Hotchkiss knew that there was a serious problem with the affidavit before the search was executed. Once he realized that there might be a problem with probable cause, he had a duty to tell Detective Nowicki about the problem.

“Now, I appreciate the fact that there was great pressure on the search team to make certain that all of the officers were safe, so talking about the affidavit right before the entry may have been a problem. But once the officers were safely inside and before the house was searched, Detective Hotchkiss should have told Detective Nowicki about the problem with the dates. Detective Nowicki could have called the issuing magistrate and explained the changed circumstances.”

“Your Honor . . . ,” Larry Frederick started, but the judge waved him off.

“I'm very troubled by the facts in this case, Mr. Frederick. I find Miss White's death especially troubling. I assume your office will appeal my decision. While the case is on appeal you will have time to investigate further. If you submit new arguments or evidence, I'll consider them and make them part of the record. But, right now, my mind is made up. Believe me, I've given my decision a lot of thought, and I feel that this is the appropriate decision given these circumstances.”

“Your Honor,” Amanda said, “will you reconsider my motion for bail?”

“Yes, I'm going to grant bail with certain conditions while the case goes up to a higher court.”

When Amanda walked out of Judge Chang's courtroom, she noticed that Dale Masterson had already left. Alan Hotchkiss was talking to Greg Nowicki in the hall.

“Thanks for helping Alan and me keep our jobs,” Nowicki said, his voice dripping with sarcasm.

Amanda looked puzzled.

“Every time you put a killer back on the street, we get repeat business.”

“Tom is innocent. If you could step back from this case you'd see that he was framed.”

“Hey, I believe you. In fact, every guy I ever sent down was framed, so the odds are in Beatty's favor.”

“You should be looking at someone in Christine's firm,” Amanda said. “If they were cooking the books, one of the partners would have an excellent motive to silence Christine. If Tom is innocent, someone else is guilty. It's not my job to solve your case for you, but you'll never get Christine's murderer if you stop looking.”

The fourteen-story Stockman Building had been erected in the center of downtown Portland shortly after World War I in an era when architects could afford to add gargoyles and cherubs and ornate scrollwork to a facade. The law firm of Jaffe, Katz, Lehane and Brindisi leased the eighth floor and Frank Jaffe's spacious office took up one of the corners. Frank was a dinosaur. One of his few concessions to the twenty-first century was the computer that sat on a corner of a partner's desk he'd picked up at an auction shortly before he started his law practice. The office was decorated with antiques, Currier & Ives prints, and a nineteenth-century oil of the Columbia Gorge.

Amanda's father was a big man with a ruddy complexion and a full head of curly hair that had once been black but was now mostly gray. His nose had been broken more than once in his youth and he looked more like the gangsters he represented than
one of Oregon's top criminal defense attorneys. When Amanda walked into his office, Frank looked up from the police report he was reading and smiled. Then he stopped smiling when he saw how glum his daughter looked.

“Judge Chang denied the motion?” Frank asked.

Amanda dropped into the client chair across from Frank. “No, I won.”

“You don't look like a lawyer who's just saved a client from the gallows.”

“Remember I told you why I thought I had a shot at winning the motion?”

“The affiant lied about buying dope from your client on one of the dates in the affidavit,” Frank answered.

“She's dead—a heroin overdose. The ME can't say whether or not she was murdered, but she was a junkie for a long time and . . .” Amanda shook her head. “It's just suspicious, especially given all the evidence that suggests Tom was set up.”

“I can see why you're upset, but the affiant's death is a problem for the police. Your job was saving Tom Beatty's life, and you did that.”

“That's what's really troubling me, Dad. If Tom didn't murder Christine Larson, someone else did. And if that person went to all this trouble to frame Tom, they really wanted him out of the way. But he's not now—he's out of jail. And that means he could be in danger.”