Motion to Dismiss (30 page)

"It was stupid, I know. But it was the only way I could think of to hear what the guy had to say."

"Which was what?"

Marc shook his head. "He never showed."

"Unless the two thugs who attacked you made the call. Did you think of that?"

"It crossed my mind."

"You could at least have told someone where you were going," I said with a note of annoyance. Not that I'd bothered to do so myself.

"Don't be angry with me, Kali. Please. Not tonight. I feel shitty enough as is." His voice wavered, and I wondered for moment if he was close to tears.

"I'm not angry," I said softly. "I'm worried."

Getting Marc out of the car was a bit easier than getting him in, but not by much. His forehead was damp with perspiration by the time I got him settled in his own bed. He let me wash the cuts and scrapes on his face, but he was too uncomfortable to even think about removing his shirt. He was shaking, and breathing unevenly. I tried again to persuade him to go to the hospital.

"Tomorrow, if I'm not better."

"How about the police? I'll call them for you."

"It won't do any good."

"You should report it, Marc."

"They'll never find the two guys."

"They might."

He leaned his head back against the pillow. "Just let me rest, okay?"

I poured us both a glass of scotch. Marc barely touched his. "How about some ginger ale or something?"

"There isn't any."

"I can go to the store."

He shook his head, barely moving it from side to side. "Just stay with me for a little while. Can you do that?"

"Of course."

Marc's skin was pale and clammy, and I worried that he might have a concussion or some internal bleeding. There was no way I was going to leave him alone. I rinsed out the washcloth with cold water and pressed it against his forehead.

Marc closed his eyes. "I'm afraid I'm not going to be much use at the hearing tomorrow."

"Don't worry about it."

He took in a gulp of air. "I'm sorry, Kali. So terribly sorry." There were tears on his cheeks.

I wanted to cradle him in my arms, to comfort him like a baby, but he was too broken and bruised for that. I reached for his hand instead, and held it in my own.

"I wanted a fresh start for us," he said unevenly. "I wanted a chance to do things right."

"Shhh," I whispered. "Try to rest. We'll talk tomorrow."

"I'm so sorry," he mumbled again. And then again. Until finally he drifted off to a troubled sleep.

I pulled a chair up next to the bed and covered myself with Marc's robe. My own slumber, when it eventually came, was as troubled as his.

"Where's Marc?" Grady asked the next morning, taking a seat beside me at the defense table near the front of the courtroom.

Dressed in a dark blue suit and freshly pressed shirt, Grady looked almost the picture of his former self. Hardy, handsome, and self-assured. Since he was a man who thrived on challenge, I suspected he would find the contention of the courtroom preferable to the helpless waiting of jail.

"Marc's not feeling well," I explained.

"What's wrong with him?"

I shrugged it off. "One of those things."

"Nothing serious, I hope."

That made two of us.

I'd stayed the night at Marc's, sleeping fitfully in a chair next to his bed. Before sunrise I'd checked on him one last time and then driven home to shower and change for court. It wasn't the best preparation for on-your-toes thinking, but surprisingly, the lack of a solid night's sleep had yet to catch up with me. I could only hope that my luck held until court adjourned for the day.

My eyes scanned the room, sizing up the crowd that packed the area set aside for spectators. No cameras, thanks to an earlier judicial ruling, but the media was there in force. For the last half hour they'd been mingling in twos and threes, like customers waiting for the doors to open at Macy's after-Christmas sale.

I'd seen Madelaine stop and exchange pleasantries with several of the groups on her way in. Next time I'd have to do the same or she'd win the war before we even fought the first battle.

Grady leaned toward me and whispered, "You're going to push for a dismissal, right?"

"I'm going to try. It's a long shot though."

"My family needs me," he said. "Just remember that."

As if I could forget. The thought had been weighing heavily on my mind these last few days. Very heavily. It wasn't just Grady's future in my hands, but Nina's and Emily's as well. My nerves were frayed from worrying.

Grady's fingers drummed the table silently. I felt my own anxiety straining every fiber of my body. Finally, the appointed hour arrived. We rose as the deputy pronounced court in session and called our case.

"People versus Grady Barrett."

I could feel Grady stiffen as the words rang out. No matter how much a defendant professes to have come to terms with being caught in the judicial system, it always comes as a cold slap of reality to hear his own name called out in such an official context.

"You may be seated," the deputy said.

There was a general rustle in the crowded courtroom as people returned to their seats and got comfortable. Grady sat rigidly with his hands folded on the table. I touched his sleeve lightly in a gesture of support.

We'd drawn Edith Atwood as our judge for the hearing. Although I'd never met her, I was familiar with her reputation. A veteran of almost a decade on the bench, Judge Atwood was known for her no-nonsense approach to moving cases through the system as efficiently as possible. It was a quality I found admirable in theory, but a bit offputting now that I was going to be on the receiving end of her judicial whip.

According to rumor, she was in the midst of a nasty divorce that had further sapped her reserves of patience. Her rulings often reflected this.

Judge Atwood took a seat behind the bench and donned a pair of tortoiseshell reading glasses. Petite, with birdlike features and short, wispy hair that was more salt than pepper, she looked like a woman not given to easy smiles or aimless banter. Not on the job, at any rate.

In words taken almost verbatim from the penal code, Judge Atwood delivered a perfunctory admonishment about the purposes and limitations of the preliminary hearing. "This is not a trial," she concluded, "and you are not playing to a jury. All we need to determine at this stage is whether there is reason to believe a felony has been committed, and that Mr. Barrett is the person who committed it." She looked over her glasses at Madelaine. "How long do you propose to take, counselor?"

"Two days should do it, Your Honor."

Judge Atwood nodded and made a notation on the sheet in front of her.

I spoke up. "The defense may need additional time."

Her eyes showed surprise. "You intend to put on a case, Ms. O'Brien?"

"I may, Your Honor, depending on how the prosecution's case goes."

Although it was clear that Judge Atwood wasn't pleased with my announcement, there was nothing she could do about it but scowl. The law allows defendants to put on a defense if they wish.

"How many days do you anticipate needing?" she asked.

I had no idea. "Two."

She sighed and made another notation.

Beside me Grady whispered, "Will that be enough time?"

About one and a half days more than I could possibly fill. I nodded.

"Are the People ready?" Judge Atwood asked.

Madelaine rose. "Yes, Your Honor."

Her opening remarks were thorough if not inspired, and pretty much what I'd been expecting. As a prelude to showing motive, Madelaine began by addressing the rape charge and the case against Grady that had been dropped following Deirdre Nichols's death. She then proceeded to lay out the case against Grady, piece by piece. Adrianna's statement about having seen a silver convertible and hearing a man's voice. The handkerchief, shoe print, and missing slacks Grady claimed to have donated to the Salvation Army.

No surprises until she mentioned a name I'd not heard before. Charles Berger.

I scratched a note to Grady. "Who's he?"

Grady answered with a nervous shrug.

Shit. This was the kind of stuff that wasn't supposed to happen. That's what the rules of discovery were all about. I shot Madelaine a questioning look, though it did me little good.

"Is defense counsel ready to proceed?" asked Judge Atwood when Madelaine had concluded her remarks.

"Yes, Your Honor," I said, standing.

"Good. Please, don't feel you need to belabor points already raised by the prosecution. Bear in mind, this is only the preliminary hearing."

"Yes, Your Honor."

"And I don't want to hear a lot of unnecessary rhetoric. Even though we've been graced with the presence of the press" -- here she paused to nod toward the chairs at the back of the room, and when she continued, her voice took on a sardonic edge -- "in spite of their interest, we'd like to proceed as though our eyes were on justice rather than on the media."

I nodded, took a calming breath, and began.

"Your Honor, the prosecution's case is based entirely on circumstantial evidence. In order to prevail in this situation at trial, the People need to show that the evidence points only to the defendant and to no one else. We intend to show that such a scenario does not stand up to logic. This is a case where the police, in their zeal to apprehend a culprit, jumped to an immediate and erroneous conclusion about who committed the murder. It's incumbent on you to dismiss the case."

I paused for a sip of water. Out of the corner of my eye, I could see Grady. He looked alert and interested, but confident -- the model of a defendant buoyed by his own innocence. Turning back to the judge, I continued.

"The defense will show that each and every point raised by the prosecution is open to a different interpretation. What's more, we intend to show that the police overlooked at least one, and possibly several, other logical avenues of investigation. They were aware of additional suspects and simply chose to ignore them."

Judge Atwood didn't blink, but there was a murmuring from the rear of the courtroom. With luck, tomorrow morning's headlines would allude to alternative suspects and defense surprises. I only hoped I could deliver.

I talked for nearly fifteen minutes, reconstructing the crime step by step, even though Judge Atwood had told me it wasn't necessary. What I said or didn't say in my opening statement wasn't going to change her decision one iota, but my words would be repeated in papers and newscasts, and I wasn't about to give up my chance to spin the tale the way I wanted it told.

I tried not to get carried away, but made sure I used words like
innocent
and
groundless
and
rush to judgment
enough that the press would pick up on them.

When I sat down, Grady touched my sleeve. "That was very good," he said, sounding almost surprised. "Everything you said made absolute sense."

Of course, Grady was hardly an impartial audience.

The state's first witness was the female police officer who'd responded to the 911 call placed by Adrianna. I recognized her from my visit to the crime scene the Monday following Deirdre's death.

After the officer was sworn in, Madelaine asked that she state her name and occupation for the record.

"Janet Morrison, patrol division with the Oakland police department."

Madelaine took her through a few preliminaries, then asked about the discovery of Deirdre Nichols's body. Officer Morrison explained that she'd arrived at the scene just after Deirdre's sister, Sheila Barlow. She'd tried to calm both the girl and her aunt while at the same time preserving the crime scene. She'd been grateful when backup help arrived. Morrison had kids of her own, she explained, and she'd found Adrianna's distress upsetting on a personal level.

I took her through much of the same territory on cross. I wanted to see if any of the details changed. They didn't. Some police officers are very good at testifying, while others get nervous and fumble for words or trip over details. These inconsistencies can serve as fodder for the defense. Unfortunately for us, Officer Morrison was a pro.

Next up was the coroner. He acknowledged that the time of death could not be determined with precision, even in conjunction with extrinsic evidence. He was, however, able to say with confidence that Deirdre Nichols's death took place sometime between eight p.m. and midnight. It was his determination that there'd been a brief struggle and then Deirdre Nichols had been pushed to her death.

I'd given a copy of the autopsy report to a forensic pathologist I'd used as an expert witness on previous occasions. If we went to trial, I would undoubtedly call him, but he'd found little in the report to quibble with.

Detective Hawkins, the lead investigator on the case, took the stand as we neared morning recess. Because the Best Evidence Rule is not applicable to preliminary hearings, the investigating officer can make use of reports and other information that would be inadmissible as hearsay at trial. As a result, Madelaine was able to cover a lot of ground with a single witness. The physical evidence from the crime scene, the results of the search of Grady's house, and the absence of any verifiable alibi on Grady's part. She hit them all, then graced me with a smug smile as she returned to her seat.

"Your witness," she said with grave formality.

Before I could begin my cross-examination, Judge Atwood called for morning recess.

"How does it look so far?" Grady asked as the courtroom emptied.

"We've barely begun."

"I don't like that judge." He was fidgeting in the seat beside me, twisting his watchband and pulling at his cuffs. "She doesn't seem very friendly."

"It's not her job to be friendly."

The bailiff came to escort Grady to the rest room. I looked around for Madelaine to see if I could get some background on Charles Berger. When I couldn't find her, I found a pay phone and called Marc at home. I didn't get an answer there, so I tried the office next.

Rose picked up on the first ring. "How's it going in the battle zone?" she asked.