Death on a High Floor (27 page)

“Why?”

“The cops dug up a box in your garden. The box was full of dirt. In the dirt, they found five more
Ides
.”

“Doesn’t surprise me that much. Larson, the guy from the National Enquirer, already told me there were ancient coins in the box.”

“And?”

“Anyone could have put that box there.”

“Including you.”

“Yes, except it wasn’t me.”

“I believe you. But now that they’ve found two fakes on you, the ‘someone else must have done it’ argument is gonna be a much harder sell.”

“I’m being framed.”

“Welcome to the Round-Up-the-Usual-Defenses Club.”

“But I
am
being framed.”

“The problem, my friend, is proving it.”

He began to put the dishes away in the cupboard.

“Robert, do you recall what we were talking about before this?” he asked.

“Whether Jenna can come back.”

“Right. And the decision still needs to be made.”

“Let’s invite her back,” I said. “I think we should keep her inside the garden.”

The line fell flat. Oscar didn’t even smile.

“I’ll call her and tell her,” he said. “You go take a shower while I do it. The bathroom’s down the hall from your room.”

“I don’t have any clean clothes.”

“Ah, but you do. That’s what was in the shopping bag last night. Jenna brought you a clean shirt, suit, socks, underwear, shoes . . . the works.”

“The suit will be wrinkled,” I said. As soon as it was out of my mouth, I knew I sounded like an asshole. Or someone from a high floor.

Oscar ignored my burst of attitude. “My friend, I ironed the suit last night while you slept.”

“You cook
and
iron?”

“Yep. For a lot of years, I couldn’t afford to pay someone to do that stuff. Low floor salary, you know.”

I smiled at the metaphor. “Okay, I’ll go quietly.”

The shower felt good, and, true to Oscar’s word, everything I needed was laid out in a little dressing area in the bathroom. I toweled off and started to dress. And tried to stop thinking about who had planted the box of coins in my garden.

But even putting on clean underwear was fraught with dark thoughts. It reminded me of what I had once been told by a CEO who had gone to prison for embezzlement—in prison they make you wear prison-issue underwear. You get different underwear back from the prison laundry every day. Never your own.

At the time I had thought it amusing.

I wandered back to the kitchen, where I was greeted by the smell of fresh coffee. Oscar was sitting at the table, reading the
L.A. Times
.

“Who took this damn picture of you on the plane?” he asked, and handed me the front page. It featured a picture of me standing beside my seat on the plane, hands on the top of my head. Looking thunderstruck.

“Clay,” I said.

“Who the hell is Clay?”

“The college kid who was sitting next to me on the plane. He used his cell phone camera.”

“The little shit.”

“He probably sold it to them to help pay his way through college,” I said. “I autographed something for him, and he told me he was going to sell it on eBay.”

Oscar looked at me with raised eyebrows. “You autographed something for him?”

“Just an article from the
Tribune
about how they were looking for me in Chicago.”

Oscar shook his head. “Well, try to avoid that kind of thing in future, will you?”

“Yes, sir. I will.”

“You want coffee?”

“You bet.”

Oscar got up and poured coffee into an old chipped mug, with a faded
Niagara Falls
logo on the side. He handed it to me.

“Why Niagara Falls?” I asked.

“It’s where I went on my honeymoon.”

“I didn’t know you were married, Oscar.”

“It didn’t last long. I was only eighteen.”

“Oh.”

“Jenna will be here shortly,” he said. “I called her and told her she was back on the team. She was excited to be coming back. She even apologized for her outburst last night.”

“Did you apologize for yours?”

“In a way. I told her I still thought it was untoward of her not to tell us she had been the courier, but, in the end, I understood it wasn’t all that important.”

“Untoward?”

“Yeah, I know,” he said. “One of them high-floor words. But, uh, the fancier the word, the less emotion’s in it, you know?”

“Not like saying she lied.”

“Right.”

There was a knock on the door. Oscar opened it. It was Jenna. It was only 7:00 a.m., but she was dressed in full business regalia. Dark suit, salmon-colored silk blouse. Gold lapel pin. Two-inch heels.

She stood in the doorway. “I’m ready to get to work.”

I held her gaze a moment. I liked that she was back. We’d been a team for almost seven years. It was the right thing to do. “Okay, let’s do it,” I said.

Jenna came over to the table and sat down. She pulled out a white legal pad and flipped to a page on which she had made some notes. Seeing the white legal pad reminded me how much I regretted the demise of yellow legal pads. Yellow pads had gone away because yellow paper doesn’t recycle. I still had a secret stash of the yellow ones in my desk drawer, but it was dwindling. I thought to myself that if I ever got back to my office, I’d have to look for a new supply. Maybe I could buy more on eBay or something.

“Robert?” Jenna was looking at me.

“Oh, sorry, I was daydreaming,” I said.

Oscar the consummate host spoke up. “Jenna, would you like some breakfast?”

“Oh, no thanks. I ate before I came.”

“Then how about coffee?” he said.

“Sure.”

Oscar got up to get it. Jenna didn’t wait for him to come back.

“We have some key decisions to make,” she said.

That’s what I had specialized in all my life, really. Decisions. Not detective work. Maybe, I thought, applying my real skills would turn out to be more useful.

“Okay, Jenna,” I said, “what decisions do we need to make?”

She took out three identical typewritten sheets that she had tucked into the inner pages of the tablet. She handed one to me, put one at Oscar’s place, and kept one for herself. “Here’s a list,” she said. “I tried to prioritize them.”

Oscar came back with the coffee pot. He put a mug in front of Jenna. The logo on this one said
QE2
. I arched an eyebrow at him. He laughed. “Second honeymoon. I was more prosperous by then.”

Jenna ignored the banter. I could see that she had returned to Ms. Efficient, someone I had not really seen around much since her first year at the firm, when she had been strictly business in all settings. So much so that some of her associate colleagues had dubbed her “Senator James.”

“Let’s look at the first decision,” she said.

Oscar glanced at the list. “Number one. Preliminary hearing next week?”

“Yes,” Jenna said.

Oscar guffawed. “Now there’s a howler. Even assuming the DA doesn’t just convene a grand jury so he can skip the preliminary hearing, he’ll be lucky to get a prelim in ninety days. And since Robert’s not even in custody, the prelim could be in September or even later next year—if it happens at all. I’m betting they just use a grand jury.”

“Hey,” I said. “Let’s start at the beginning. It’s been a long time since I took criminal procedure.”

“My deepest apologies,” Oscar said. “I’ll explain. After they arrest you and arraign you, the DA has to persuade some judge that there’s reasonable evidence you committed the crime. In short, the DA only has to show “probable cause” that you’re guilty. Which is a lot lower standard than “beyond a reasonable doubt.” And he can show probable cause in one of two ways.”

“Which are what?” I asked.

“First way,” Oscar said, “the DA just convenes a grand jury and asks them to indict you. He still has to present evidence—witnesses and documents—that show there’s sufficient evidence you probably committed the murder, of course. But he gets to prove up his probable cause case in total secret. If the grand jury finds there’s probable cause, the DA just presents their indictment to a judge, who rubber stamps it, and that’s the end of it.”

“And the second way?”

“Second way is through a preliminary hearing, where the DA puts on his witnesses and other evidence in front of a judge. Then tries to persuade
the judge
that there’s probable cause you murdered Simon. Unlike a grand jury proceeding, a prelim is an open, public hearing.”

“It’s a naïve question, I guess, but which should we prefer?”

“The public prelim,” Oscar said. “We can get free discovery by cross-examining the DA’s key witnesses.”

“Why can’t we do that in a grand jury?” I asked.

“Because we don’t even get to attend. The whole thing’s done in secret. Sometimes we don’t even learn a grand jury’s looking into it. We just wake up one morning and discover you’ve been indicted. Or maybe we read it in the newspaper at breakfast.”

“Okay,” I said, “so if I were the DA, I’d pick the grand jury route.”

“Yeah, and that’s precisely what most DA’s do these days,” Oscar said. “Not that it really matters to the outcome. DA’s almost never lose preliminary hearings in front of a judge when it’s a big case, and grand juries indict anyone the DA tells them to indict.”

“I know that drill,” Jenna said. “My dad bitched about it when those assholes in Cleveland indicted him for a bribe he never took. He was always quoting Sol Wachtler, the former Chief Judge of the New York Court of Appeals, who said a grand jury would indict a ham sandwich if the DA asked them to.”

“Probably,” Oscar said, “a grand jury’d indict the leftover crust.”

Jenna took a big gulp of coffee. “Okay,” she said, “now that Robert’s crim procedure refresher is over, back to why there’s a decision to be made. Yesterday evening, I got a call from Charles Benitez.”

“Who’s Charles Benitez?” I asked.

“Sorry again,” Oscar said. “Did you ever watch
The
Godfather
?”

“Sure,” I said.

“Well, call Charles Benitez the DA’s
consigliari
,” Oscar said. “The brains of the office. Mostly he stays behind the scenes. But when it gets politically important, he actually goes to court so it won’t get screwed up.”

He turned to Jenna, whose coffee cup was now completely empty. “So what did Charlie have to say, Jenna?”

“He said the DA has a deal to propose.”

Oscar and I spoke almost as one: “What’s the deal?”

“They want to do a preliminary hearing, but they want it to start next week. If we agree to that, they’ll agree not to press for a trial before June, or move it even later in the year if we need it. Plus they’ll give us the murder book right now.”

“What’s the murder book?” I asked. I was truly beginning to feel like a first-year law student all over again.

“All the investigation stuff that they’re required by law to give us,” Oscar said. “Witness interviews, expert reports, exculpatory evidence, blood tests, whatever. Usually they drag their feet on handing it over. It won’t be complete yet, but it would be nice to get what they’ve already got right away. On the other hand, we need a lot more time to prep for a really great job on the prelim. So we’d give up a lot and not get much in exchange.”

Jenna was staring, forlornly I thought, at her empty coffee cup. “There was more,” she said. “They will agree not to seek a revocation of bail on the grounds that Robert tried to flee. Or try to raise it to five million.”

“I didn’t try to flee!”

She ignored me. “Or ask that he wear an ankle bracelet.”

That stopped me. “An ankle bracelet? Can they really do that?”

“Sure they can,” Oscar said. “They’d go in and tell the judge that in lieu of asking for greater bail, they’d like you braceleted. It’s not such a big deal.”

“I’d feel like Hester Prynne in
The
Scarlet Letter
,” I said.

Jenna smiled. “Robert, Hester Prynne wore the scarlet letter on her chest. You can’t even see an ankle bracelet.”

I didn’t feel mollified.

She went right on. “But the most important thing is that if we agree to the early prelim, they assure us that they won’t take the case to the death penalty committee.”

“This isn’t even close to a capital case,” Oscar said. He actually rolled his eyes. “That stuff they fed Robert in the squad car about lying in wait as a special circumstance is horseshit. They
never
go for death on that ground.”

I was having trouble being a balanced decision maker.

“Hey guys, whether the chance is remote or not, it sounds pretty damn good to me to be guaranteed that they won’t try to kill me.”

Jenna and Oscar both looked at me. I could see them thinking something like, “Oh shit, the client is sitting here listening to all this.”

Jenna made the kind of decision good lawyers make when they don’t want to go down a particular path right then. She found something else to talk about. “Oscar, could I get more coffee?”

“Sure, Jenna.” Oscar got up to fetch the pot.

“How many cups have you had today, Jenna?” I asked.

“This is only my fourth.”

“At 7:00 a.m.”

“Yes. Are you now my mother?”

“No. Just asking.” Jenna knew I was harking back to the days of “
Senator James
,” when she was known not only for her all-business manner, but for consuming nine or ten cups of coffee a day. Her other nickname had been “
Wired
.”

Oscar returned and refilled the
QE2
.
Still standing, coffee pot in hand, he tried to reframe the issue. “Okay, on the one side, we have something the current DA—Horace Krandall—wants, and he’s offering, really, not much in return. So if we didn’t take the client’s wishes into account, we’d tell him to forget it. Or something even stronger.”

“But,” and he waved the coffee pot in my direction, “. . . our client is a nervous Nellie and doesn’t want to be sentenced to death.” I thought I detected a ghost of a smile when he said that, but maybe not.

“I don’t want to be sentenced to anything,” I said. “But yes, it would comfort me to know that I’m definitely not going to an execution gurney.” As I said those words, I realized that I had gone from thinking this whole thing was ludicrous to worrying seriously about being executed.