your honor, that someone other than Melvin Jackson killed Clarissa
Easterbrook. If that's true, as I believe it is, then let's be honest
that someone did a pretty good job setting up my client. My client was
upset with the victim, he worked where the body was found, paint from
his van was found on her dog, and then, of course, the weapon's the
icing on the cake. As I delved into the question of who might be in a
position to accomplish such a setup, I kept coming back to the
construction site in Glenville."
Slip continued to spell out the coincidences for her. Jackson, his
landscaping business a fly-by-night operation in the penny newspapers,
suddenly gets a call from Minkins asking him to work on a
multimillion-dollar project by Gunderson Development. Minkins sees him
take paint from the property, and later that paint turns up on
Clarissa's dog. When Clarissa's body is found at the property, it's
Gunderson Development that makes sure the police get Melvin's name. And
then it turns out that Jackson's not the only person with business in
front of Clarissa Easterbrook; a case in which Easterbrook ruled on
behalf of Gunderson had her troubled enough that she kept a copy of the
case file under lock and key.
Prescott raised her eyebrows, clearly surprised by the amount of detail
in the proffer. The problem was that the proffer was enough to raise
eyebrows, but Slip still didn't have enough to tie everything together.
It was, in Thorpe's words, pure speculation. Prescott's ruling could
go either way. Convincing her to pull the trigger and put the
witnesses in the chair would be a matter of strategy.
First, we had to sit through Thorpe's diatribe. "To suggest that my
clients had anything whatsoever to do with Ms. Easter-brook's murder
is outrageous. Mr. Szlipkowsky should be grateful that Mr. Gunderson
hasn't sued him for slander." Thorpe handed the judge, Slip, and me
copies of an affidavit signed by a Lee Block. I had to admit, I was
impressed by the work Dunn Simon had done in the hours that had passed
since the subpoenas were served. "As you can see," Thorpe explained,
"Mr. Gunderson was in Bend, Oregon, looking at a property all day on
the Sunday when Ms. Easterbrook disappeared. Mr. Minkins was in the
casino at Chinook Winds until four p.m. that day. We are working on
locating a videotape to substantiate that, and I'm confident we will
have it by the end of the day."
The plan was working. Without even getting a ruling on the subpoenas,
the attorney who refused to let me talk to Gunderson and Minkins
informally had just locked them into alibis for the time of Clarissa's
death. Go figure.
Having set up the facts he wanted to rely on, Thorpe launched into his
argument. He took the predictable route, borrowing many of the same
points made by Bow Tie on Friday.
I opened the folder on my lap to sneak a glance at the note that Slip
had passed me. The man's handwriting was as sloppy as his attire, but
I made it out: Disc = finances of OHSU pediatric wing.
I tried to pull my concentration back to Thorpe, who was using words
like ludicrous, preposterous, and farcical. If Dunn Simon was charging
by the word, he should have checked his thesaurus and added cockamamy
and wacky while he was at it.
Why had Clarissa kept the financial records from Townsends hospital
wing in her safe deposit box? Maybe they were his backup records and
she was keeping them for him, but would she really tell him about a
safe deposit box that contained a video of Caffrey and her at a motel?
If she wasn't holding them for Townsend, why was she holding them at
all? It didn't make any sense.
"Ms. Kincaid. Does your office have a position on this?"
"I'm sorry, your honor. On what?"
Slip looked at me like I'd lost my mind.
"Well, as I understand it," the judge said, "Mr. Thorpe's principal
argument is that the defense's argument is one big paranoid delusion
and that, in any event, Mr. Szlipkowsky has failed to draw any kind of
nexus between the folks at Gunderson and this supposed frame-up.
Correct me if I'm misstating it, Mr. Thorpe, but he's essentially
arguing that the starting point for the alleged conspiracy would have
to be knowledge of Mr. Jackson's animus toward Ms. Easterbrook. And
I haven't heard the defense articulate any reason to believe that the
Gunderson company would have that knowledge. It happened to have a
case decided by her, but so do hundreds of other companies doing
business in the city. Before I rule, I'd like to hear where you stand
on the motion."
Something about what she said was bothering me, but I needed to get the
plan back on track. "Obviously, this is a matter for the court's
discretion, your honor, but it strikes me that the issue we're looking
at is different from the one your honor ruled on last Friday. The
previous subpoena struck me as an attempt to introduce inflammatory
information about possible activities in the victim's personal life,
without ever tying those activities concretely to the victims murder or
to Mr. Szlip-kowsky's client.
"Here, in contrast, Mr. Szlipkowsky has provided specific information
that appears to raise questions that I would be inclined to pursue at
least in some form prior to trial. Let me be clear: I am still
confident of our case against Mr. Jackson. But what I don't want to
see is a situation where we'll be dealing with these same issues down
the road at trial in front of a jury who might be misled or confused.
Quite frankly, if the court were to grant Mr. Thorpe's motion, my
office might be inclined to serve grand jury subpoenas instead. In the
event that possibility affects the court's exercise of its discretion,
I thought I should be forthright about my intentions."
"Well, thank you, Ms. Kincaid, for your candor. It certainly wouldn't
make sense to have the witnesses leave, just to return tomorrow for a
grand jury session."
While I was getting brownie points for my honesty, Thorpe was working
his way into the doghouse.
"That doesn't make any sense at all, your honor. If you decide to
quash these subpoenas, you should quash any subpoenas that Ms. Kincaid
might order in the future."
Prescott, Slip, and I just looked at him. In addition to being rude,
Thorpe's statement was simply wrong. Courts live with the fiction that
grand juries are independent of the judicial and prosecutorial systems.
Convincing a judge to quash a subpoena to appear in court was one
thing; convincing her to mess with the grand jury was quite another.
While Prescott corrected Thorpe's misunderstanding, I thought more
about what was bothering me. Prescott was right. If Gunderson was
behind this setup, he had to have known about Jackson's letters.
My immediate attention, though, was on the subpoenas. Thorpe hadn't
thrown in the towel yet, and we were moving into part two of the plan,
the good part.
"With all due respect, your honor" lawyers should never say this, since
&nb
sp; what they're essentially saying is I have no respect for you, your
honor "I don't see how the court's decision about this hearing should
be affected by something that the district attorney may or may not do
in a separate grand jury proceeding. And if we're going ahead and
playing that game, the reality is I can always instruct my clients to
invoke their Fifth Amendment rights either today or at a subsequent
grand jury hearing."
Oh, yeah. As I'd hoped, Thorpe had been the first to mention the Fifth
Amendment. It was time for my move.
"Actually, your honor, on that point: I don't want to get too far ahead
of ourselves here, but in the event Mr. Gunderson and Mr. Minkins are
ordered to testify either today or at a subsequent grand jury hearing
it strikes me that it may not be appropriate for the two of them to
share counsel." I looked down at a PPDS printout. "I see here that
Mr. Minkins is on probation for forging a check. His probation
officer might not be happy about a failure to cooperate with a murder
investigation or gambling, for that matter, since Mr. Thorpe has said
his client was in a casino just eight days ago. As a matter of fair
process, Mr. Minkins should at least have an attorney who is thinking
solely about Mr. Minkins's best interests."
They had good poker faces, but I could've sworn that Gunderson looked
afraid, and Minkins looked mad. And they both looked nervous.
Prescott must have seen it too, because she suddenly displayed a
decisiveness I'd never before witnessed in her. "I am not going to
quash the subpoenas. Although I granted a similar motion filed by a
different witness last Friday, I believe that the defense's desire to
question Mr. Gunderson and Mr. Minkins is distinguishable. The
questioning does not raise the same issues of privacy implicated by the
earlier subpoena, and the defense has articulated a plausible nexus
between these witnesses and this offense. Although it is not a nexus
that has in any way been proven, I believe the defense should be
entitled to at least question these witnesses further to determine
whether they possess relevant exculpatory evidence. As for potential
harm to the witnesses, Mr. Thorpe, you said so yourself: They can
always invoke if they believe the questioning is likely to incriminate
them."
Thorpe was clearly stunned, but he did his best to cover. "I'd like a
moment to confer with my clients, your honor, to determine how they
would like to proceed."
"Of course. We'll reconvene here in ninety minutes. And, with respect
to Ms. Kincaid's observations about the appropriateness of joint
representation, if either of your clients wishes to speak to me in
chambers about that matter, I will be available and can assist in
obtaining substitute counsel if necessary. Ms. Kincaid, you might
want to stay nearby, in the event you're needed."
Prescott had gone one step further than I expected. If Min-kins had
missed the point of my earlier comments, Prescott's certainly set the
stage for Minkins to jump ship.
As we left chambers, Thorpe said something to Roger, who then excused
himself from Townsend, no doubt so he could accompany his partner and
Slip's next witnesses back to some conference room at Dunn Simon.
"Roger, I was hoping we could talk before you leave," I said. "I need
to speak to Townsend about something."
"Now's not exactly a good time, Samantha. Jim told me about the stunt
you pulled back there. I don't know what you're up to, but don't say a
word to Dr. Easterbrook while I'm gone, or I'll have your bar ticket.
On my instructions, he's going home."
I stood by the door and watched them head down the hall. By the time
they got to the elevator, Jim and Roger were already playing referees
between Gunderson and Minkins.
I turned to my favorite flannel-and-cords guy. "Hey, Slip. You
gamble?"
Thirteen.
I won the bet. Minkins called Judge Prescott just forty minutes later
from a pay phone in the lobby of the Dunn Simon building. Slip had
guessed it would take an hour.
I spent some of the time talking to Slip. He gave me a copy of the
spreadsheets he'd printed out from Clarissa's mystery disc. Based on a
quick scan, I had to agree that nothing interesting popped out, except,
of course, the fact that the data had been password-protected in a safe
deposit box.
I thought about the security system on the Easterbrook house. Maybe
they were cautious enough to keep something as innocuous as a backup
file under lock and key. But would Clarissa really stow a copy of her
husband's file alongside a video of a tryst with her boyfriend?
I spent the remaining half hour thinking about everything I had learned
about Clarissa this week. Based on what I'd heard, it was hard to
imagine that she'd sell her office to someone like Gunderson. But
ultimately I could picture it. After all, there had been times when I
wondered whether the cops and lawyers
circumstances might affect their decisions. A few years of pushing
through the morass of boredom I saw in Clarissa's files, and your
average person might not see the harm if a couple of arbitrary,
meaningless decisions went the wrong way.
So what had been Clarissa's circumstances? Maybe she felt guilty about
her affair and wanted the money if in fact there had been any money to
make it up to Townsend. Or maybe the money was to help her leave
Townsend and start a life with T. J. Caffrey.
Judge Prescott's clerk finally saved me from my aimless speculation
when she told me about the call from Minkins.
Prescott handled the stress well. She made a quick call to Thorpe to
confirm that he was aware of Minkins's decision, then found the nearest
defense attorney in the hallway to stand in as counsel. The short
straw went to Lisa Lopez, one of the most liberal cop-haters in the
PD's office. If you need a defense attorney who can cut through the
crap and pull a recalcitrant defendant to the plea table, Lopez is a
pain in the ass. But here, we'd paint the picture of a
down-on-his-luck chump-change cheat, eager to flip the switch on the
big bad white-collar criminals in exchange for a walk. Lisa'd be all
over it.
Prescott gave Lisa a chance to talk to Minkins alone. I called
Minkins's probation officer to make sure I wasn't missing anything. The
PO had never heard of him and told me to do what I needed to do.
A half hour later, I was sitting with Lopez and Minkins in a jury room.
Lisa cut to the chase. "Before he says anything, I want full
transactional immunity," she said.
She knew that was impossible. Transactional immunity is the brass ring
of plea deals, and no one ever receives it. Hand that over to a
defendant, and he can boast of every bad thing he ever did, and you can
never touch him for any of it.
"First of all, you know that's not going to happen," I told her. "More
important, you know that what I'm willi
ng to give him depends on what
he's got to say."
"Are you in a position to give him a walk?"
I was nervous about making a deal without talking to Russell. But if I
called him now, not only would I look weak, but he might screw things
up and stop the flow of information. I steeled my courage. This was
no different than what I'd done hundreds of times before with drug
informants.
"Again, it depends on what he's got to say. Can he give me PC for
murder?" With probable cause for someone other than Jackson, I'd have
enough to make arrests and obtain search warrants.
"No," she said without hesitation, apparently surprised that I had even
entertained that as a possibility. Minkins eyed her suspiciously, and
I got the feeling that he would've offered to say whatever was
necessary to save his ass.
"No promises," I said. "You've got to take your chances or take the
stand. Up to you."
Lisa nodded at Minkins, and he said what he had to say.
"First off, I got nothing to do with anyone dying. Swear to God, to
this day I still don't know what the fuck's going on. But far as I can
tell, you think someone set up this Jackson for a fall. As to that
point, what I can add is that Larry handed me the dude's number a
couple weeks ago and told me to hire him. Didn't matter what the terms
were. Gunderson owed a friend a favor, and that meant I had to get
Jackson on-site. Turned out not to be a problem. The guy jumped at
it."
"Did he say who the friend was?" I asked.
"No clue."
Most likely a cover story Gunderson gave Minkins just to get Jackson on