Chasing Justice: A Matt Royal Mystery (35 page)

“You weren’t actually here on a case, were you?”

“My recollection is that I was here on a case.”

“You testified yesterday that you might have been here on personal business. Are you changing you testimony now?”

“No. What I meant was that my best recollection is that I was here on a case, but I might be mistaken. I might have been here on personal business.”

“But you don’t have any recollection of what that personal business might have been.”

“That’s correct.”

“When you testified yesterday, you were pretty adamant that your boss, Stan Strickland, called you about this case. Have you reconsidered that testimony?”

“No, sir.”

“So as you sit here today, under oath, your testimony is that you didn’t call your boss and ask him to assign you to the Bannister case?”

“Yes. I’m sure that Agent Strickland called me.”

“Let me show you some documents.” I walked to Swann’s table and dropped a copy and went on to the witness stand and laid a copy in front of Lucas.

“Where did you get these?” Lucas asked, his temper rising.

Swann was on his feet, objecting. “I haven’t seen these documents, Your Honor, and they’re not on the exhibit list.”

“Impeachment,” I said.

I hadn’t gone through the normal process of getting the records. That would have involved subpoenas and notice to Swann of what I was after. Jock worked his magic and retrieved the records with little effort and, of course, no subpoena. If the judge asked about how I got them, I would plead the work-product privilege, which probably wouldn’t go very far with this judge, but I was hoping Swann wouldn’t take time to think through the question of where the records came from. Maybe every one would assume they came from the agent in charge of the Tampa office of FDLE.

After I had telegraphed my approach regarding the records when I cross-examined Lucas the day before, I would have thought he might have been a little less confident when I broached the subject again. I was pretty sure that he and Swann had discussed this and came to the conclusion that since I had not subpoenaed the records, which would have required notice to Swann, that I had been bluffing when I asked Lucas about what the phone records would show.

“Approach the bench,” the judge said. When Swann and I got there, the judge said, “What are these, Mr. Royal?”

“Telephone records from the phone company that provides service for state agencies,” I said, “including the records of all calls between Agents Lucas and Strickland on the morning of April first of this year.”

“Your objection, Mr. Swann?”

“They’re not on the list. I’ve never seen these before.”

“Mr. Royal,” the judge said, “are you using these for impeachment purposes?”

“Yes, sir.”

“Your objection is overruled, Mr. Swann.”

“But, Your Honor,” Swann began.

“Sit down, Mr. Swann.” The judge’s voice was icy. Swann got the hint and went back to his seat. I went back to the witness stand and handed Lucas the documents.

“Repeat your question, Mr. Royal,” the judge said, “and you may answer, Agent Lucas.”

“Do you recognize these documents?”

Lucas had calmed himself. He looked at the documents. “They appear to be the record of phone calls.”

“Do you see any phone numbers that you recognize on the records?”

“Yes. These appear to be my cell phone records.”

“Do you see where you made a call at eight-fifteen the morning of April first?”

“Yes.”

“To whom was that call made?”

“My boss, Agent Strickland.”

“To his cell phone?”

“Yes, sir.”

“Was that call the only one you made to your boss that morning?”

Lucas looked closely at the document. “It would appear so.”

“Look at the second page of the documents and tell me what that is, please.”

“That would appear to be the record of Agent Strickland’s cell phone.”

“Do you see the incoming call from your phone?”

“Yes.”

“Same time as your record shows you made the call?”

“Yes.”

“Are there any other calls between your cell and Agent Strickland’s on the morning of April first?”

“No.”

“Look at page three, please, and tell me what that is.”

“That would appear to be a record of calls from and to the FDLE office in Tampa.”

“Do you see any incoming calls from your cell phone on the morning of April first?”

“No, sir.”

“Do you see any calls from the agency office to your cell phone on that morning?”

“No, sir.”

“Are you aware that Detective Harry Robson of the Sarasota Police Department testified here that he arrived at the scene of the crime at eight-twenty that morning?”

“Yes.”

“Do you remember that you testified here in this courtroom that you were first called by Agent Strickland at about ten in the morning of April first?”

“Yes.”

“Then how do you reconcile that testimony with the phone records that clearly show the only call between you and Agent Strickland on that morning was the one made at eight-fifteen by you to Agent Strickland?”

“I don’t remember what that call was about, but he called me again at ten o’clock about this case.”

“And on what phone would you have received the call?”

“Probably my other cell phone. I carry two, the one supplied by the office and my own personal phone.”

“Did you own any other phones that day, April first?”

“No.”

“Do you still have that personal phone?”

“No. I lost it a couple of months ago.”

“How long did you own it?”

“Two or three years.”

“Was that the only phone you had possession of on April first, other than the one issued by FDLE?”

“Yes.”

“You’re sure you didn’t have another phone that day, perhaps one you borrowed, or one of those prepaid phones they call burners?”

“We’re not allowed to carry burners, and I’ve never borrowed a phone from anybody in my life.”

“Do you remember the number on that phone? The one you lost?”

“I’m sorry, but I don’t.”

“Would the number have been 813-555-3833?”

That caused a reaction, but again it was slight. I’d rattled him, but he was still stoic, his expressions subtle. “Yes, I think so.”

I handed him another document. “Can you identify this document?”

He looked at it. “The phone records for my private cell.”

“Do you see a call on there for the morning of April first, either an incoming to you from Agent Strickland or the FDLE office in Tampa?”

“No.”

“And do you see any calls from you to either of those numbers on the morning of April first?”

“No.”

“So, would it be fair to say that you did not get an assignment from Agent Strickland at mid-morning on April first?”

“I don’t remember.”

“Then would it be correct to say that you called Agent Strickland at eight-fifteen on April first, some five minutes before Detective Robson even got to the scene of the murder?”

“I don’t remember.”

When the witness starts to fall back on a lack of memory, the lawyer is winning. Juries don’t like that kind of answer, particularly when the lawyer has just proved with irrefutable evidence, the written documents, that what the witness had so confidently testified to couldn’t possibly be true.

Time to switch gears. “Had you ever been in Mr. Bannister’s condo prior to the first time you went there as part of your investigation?”

“No, sir.”

“Had you ever met Abby Lester before you arrested her?”

“No.”

“Do you know who Linda Favereaux is?”

“Only what I’ve heard. She was a woman who was murdered on Longboat Key at about the same time that Mr. Bannister was killed.”

“Did you know that Mrs. Favereaux and Mr. Bannister had sex just before Bannister was killed?”

“No.”

“Did you ever meet Mrs. Favereaux?”

“No.”

“Had you ever heard of her prior to your involvement in this case?”

“No.”

“Would you be surprised if I told you she was an undercover agent of the Department of Homeland Security, and was investigating Mr. Bannister for his part in local drug dealing?”

“I don’t know how I’d be surprised if I’d never heard of her.”

“As a matter of fact, Agent Lucas, you saw Linda Favereaux at Mr. Bannister’s condo on the night he died, didn’t you?”

A shadow crossed Lucas’ face, a momentary breach in the cool exterior he’d maintained since I’d first met him. It was a look of fear, not unlike that of a small animal cornered by the big predator. Lucas was glimpsing his own doom. He didn’t know what I could prove, but he knew I was closing in on him. He was rattled, and I expected him to deny that he’d been in Bannister’s condo on the night of the murder. But he surprised me. He dropped the bomb, the one that would repudiate every thing he’d testified to, every shred of evidence he’d given in this case. He said, “I will invoke my rights under the Fifth Amendment to the United States Constitution and refuse to answer that question, Counselor.”

There was dead silence in the courtroom. I stood at the podium, stunned by this turn of events. It was one of those things that often happen in trials; the unexpected turn that throws the lawyer’s plans into turmoil.

I looked up at the judge, who seemed to be moving in slow motion as he leaned toward the witness stand. The rustle of shuffling papers at the prosecutor’s table broke the silence, a juror coughed, a chair squeaked. The judge said, “Agent Lucas, are you seeking the protection of the Fifth Amendment to the United States Constitution against giving testimony that might incriminate you?”

“Yes, Your Honor.”

“Okay,” the judge said, “I’ll instruct the jury.” He told the jury that every witness had the right under the United States Constitution not to incriminate himself and that he could not be compelled to testify if the testimony tended to do so. The jury was not to read anything into the witness’s assertion of his constitutional rights.

Good luck on that one, I thought. The second that Lucas invoked his right, every man and woman on that jury knew he was guilty of something, if not murder, and anything he’d testified to was immediately rejected.

“Agent Lucas,” I said, “did you kill Nate Bannister?”

“I’ll take the Fifth,” he said.

“Did you manufacture the emails that were purportedly sent by Abby Lester to Mr. Bannister?”

“No.”

“Do you know who did?”

He sat for a moment, mulling over the question. “I’m going to have to take the Fifth on that one, too.”

“Did you kill Linda Favereaux?”

“I’ll take the Fifth.”

Lucas had made the calculation that by taking the Fifth he would perhaps appear guilty to this jury, but since he didn’t know what evidence there was that would prove him a murderer, he would be protecting himself. The very fact that I was asking such questions would lead him to believe that there was some evidence of his guilt, but he had no way of knowing how strong that evidence was. He was probably assuming that he would be charged, but if the evidence against him could be picked apart by a smart lawyer, he could at least plea bargain to something that wouldn’t include a life sentence in prison. By invoking the Fifth, he was not testifying to something that could be used against him in his own trial. The jury in that trial would never know that he’d hidden behind the Constitution in this trial.

I looked at my watch. Four o’clock. Lucas had disrupted my plan with his unexpected invocation of the Fifth Amendment. Under the circumstances, I didn’t think Swann would cross-examine Lucas. I had one more major witness to call, and I’d be done. I thought I had time before the evening recess.

“Under the circumstances, Your Honor,” I said, “I have no further questions.”

Swann looked a little dazed as he slowly rose from his chair. He had just seen his case implode. Every lawyer who has tried enough cases has had that terrible moment when he realizes that his carefully constructed case has taken a fatal turn and he has lost the jury. It usually happens when an important witness you had counted on, or sometimes your own client, dissolves on the stand, his testimony falling apart under cross-examination that shows him to be a liar. It had happened to me once, and I knew the feeling, a combination of despair and cold anger directed at the witness stand and the person who had so completely destroyed his own case by lying under oath. I almost felt sorry for Swann.

“I have nothing,” Swann said.

“May we approach the bench, Your Honor?” I asked.

He motioned us forward. “What’s up, Mr. Royal?”

“Your Honor, there are two detectives in the courtroom who would like to arrest Agent Lucas. I would suggest that it might be appropriate to send the jury out so that the arrest can be accomplished outside their presence.”

The judge nodded and told the jury that we would take a short recess and he would bring them right back in so that we could finish the day on time. The jury went out, and Detective Harry Robson came forward and arrested Lucas. Harry read him the Miranda rights regarding his right to remain silent and to have an attorney. Lucas nodded, his face a picture of infinite sadness. I was looking at a man whose life was over. Whatever crimes he’d committed, whatever base impulses had driven him to the dark side of a society that can only exist because the rule of law shines a bright light into its dark corners, he was still a human being, and as loathsome as he was, I couldn’t help but feel pity for him.

* * *

The jury trooped back in. “Call your next witness, Mr. Royal,” the judge said.

“State your name, please.”

“James Favereaux.”

“Where do you reside?”

“Gulf of Mexico Drive, Longboat Key, Florida.”

“Your occupation?”

“I’m employed by the United States Department of Homeland Security.”

“In what capacity?”

“I’m a special agent in the investigative division of DHS.”

“Do you work undercover?”

“Yes.”

“How long have you been doing that kind of work?”

“About thirty years, in one federal agency or another.”

“How long have you lived on Longboat Key?”