RK02 - Guilt By Degrees

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He stood
still, listening as the car pulled out of the driveway. When the sound of the engine faded into the distance, Zack looked at his watch: 9:36 a.m. Perfect. Three solid hours of “me” time. He eagerly trotted down the thinly carpeted stairs to the basement, the heavy bass thud of his work boots echoing through the empty house. Clutched in his hand was the magazine photograph of the canopy he intended to build. He figured it would’ve cost a small fortune at one of those fancy designer stores, but the copy he’d make would be just as good, if not better—and for less than a tenth of the price. A smile curled Zack’s lips as he enjoyed the mental image of Lilah’s naked body framed by gauzy curtains hanging from the canopy, wafting seductively around the bed. He inhaled, imagining her perfume as he savored the fantasy.

Zack jumped down the last step and moved to the corkboard hanging above his workbench. He tacked up the magazine photo, pulled out the armless secretary chair with the bouncy backrest, and sat down heavily. The squeak of the overburdened springs jangled in the stillness of the dank air. The room was little more than a cement-floored cell, but it was Zack’s paradise, filled to bursting with the highest quality carpentry tools he could afford, acquired slowly and lovingly over the years. Since he was a kid, he’d found that making things with his hands had the power to both calm and inspire him. His brother, Simon, said it was his form of Zen. Zack shook his head. Simon would’ve made a great hippie if he hadn’t been born about twenty years too late.

Hanging on the walls were framed photographs of Zack’s completed projects: the seven-tiered bookcase, the cedar trunk with inset shelving, the wine cabinet. Each one had come out better than the last. His gaze lingered on the photograph of the wine cabinet as he remembered how he’d labored to carve the grape leaves on its doors. It had to be worth at least five hundred dollars.

Zack turned to the bench. He pulled a steno notepad off the shelf above it and snagged a pencil from the beer stein where he kept his drafting tools. The stein had been a Christmas gift from his rookie partner, who hadn’t yet learned that, unlike the other cops in their division, he wasn’t much of a drinker.

He rolled his chair back, put his feet up on the desk, and began to sketch. Minutes later, he’d finished the broad outline. He held the drawing at arm’s length to get a better perspective when a sound—a soft rustling somewhere behind him—made Zack stop, pad still poised in midair. He dropped his feet to the floor and carefully began to scan the room.

He sensed rather than saw the sudden motion in his periphery. Before he could react, the weight of an anvil crashed into the side of his head. Blood-filled stars exploded behind his eyes as he flew off the chair and landed on his back on the hard cement.

Zack opened his eyes, dimly aware of a voice—his own?—crying out in pain. Someone was poised above him. Again he sensed movement, something cutting through the air. In a hideous moment of clarity, Zack saw what it was. An ax.

He watched in mute horror as the blade came whistling down. At the last second, he squeezed his eyes shut—hoping to make the nightmare go away. But the ax plunged deep and hard, the blade slicing cruelly through his neck, right down to the vertebrae. As the blade yanked out, his body arched up, then collapsed back to the ground, and blood spurted from his severed carotid. The ax rose again, then hurtled downward, blood flying off its edge and onto the walls. Again and again, the blade rose and fell in a steady, inexorable rhythm, severing arms and legs, splitting the abdomen, unleashing coiled intestines and a foul odor. When at last the bloody ax dropped to the floor, a fine red spray spattered the walls and the shiny trophy photographs of Zack’s creations.

He moved
with purpose. That alone might have drawn attention to the man in the soiled wool overcoat, but the postlunch crowd was a briskly flowing river of bodies.

The homeless man picked up his pace, his eyes focused with a burning intensity on the woman ahead of him. Suddenly he thrust out his hand and gripped her forearm. Stunned, the woman turned to look at her attacker. Shock gave way to outrage, then fear, as she twisted violently in an effort to wrest her arm away. They struggled for a few seconds in their awkward pas de deux, but just as the woman raised a hand to shove him back, the man abruptly released his grip. The woman immediately fled into the crowd. The man doubled over and began to sink to the ground, his face contorted in a grimace of pain. But even as his body sagged, his eyes bored into the crowd, searching for her, as though by sheer dint of will they could pull her back.

Finally, though, unable to resist the undertow, he sank down onto the filthy sidewalk, turned on his side, and began to rock back and forth like a child. The river of pedestrians flowed on, pausing only long enough to wind around him and then merge again. After half an hour, the rocking stopped. A passerby in a janitor’s uniform leaned down to look at the man for a brief moment, then continued on his way. A young girl pointed her cell phone at him and took a picture, then moved on as well.

It would be another hour before anyone noticed the spreading crimson stain under the homeless man’s body. Another hour after that before anyone thought to call the police.

I looked
out the window of my office on the eighteenth floor of the Criminal Courts Building, sipping my third cup of coffee of the morning and savoring the view—one of my favorite pastimes. It had poured last night; early this morning, an unexpected wind kicked up. All vestiges of smog were wiped out, bequeathing to the citizens of L.A. an uncommonly sparkling day. I watched the sunlight dance over the leaves of tall trees whose branches whipped to and fro, threatening to crack the heads of those scurrying up the street toward the courthouse.

“Rachel, don’t you have a preliminary hearing on that arson murder in Judge Foster’s court this morning?” asked Eric Northrup, my boss and the head deputy of the Special Trials Unit.

As with all cases in Special Trials, my arson murder case was that ugly combination of complex and high-profile. Proving arson is seldom as simple as it sounds. You have to rule out all accidental and natural causes, and frequently the necessary evidence burns up with the victims—who in this case were the elderly parents of the murderer. The press probably wouldn’t hang around for the preliminary hearing, but they’d been making noises about wanting to cover the trial. And that meant I’d have them breathing down my neck while I slogged through the reams of testimony required to stitch together a million little pieces of evidence, praying that the jury didn’t get lost along the way. Fun. But ever since I’d joined the district attorney’s office eight years ago, I’d dreamed of being one of the few handpicked deputies in Special Trials. And this kind of gnarly beast of a case, which swallowed up any semblance of a personal life, was exactly what I’d signed up for.

“Yep,” I replied. My motto: Keep it simple and never offer more than the question asks for. With a little luck, the questioner gives up and goes away. That motto is less effective when the questioner happens to be your boss and you’re in your office when you’re supposed to be in court doing a preliminary hearing on a murder case.

Eric put his hands on his hips and looked at me expectantly. “I know you hate waiting in court, but…”

I hate waiting in general, but I especially hate it in court, where you’re not allowed to do anything except sit there and watch proceedings so boring they make you want to bang your head against a wall.

I held up a hand. “You don’t have to tell me,” I said. I’d heard that Judge Foster was on the rampage about having to wait for DAs to show up. “But he’s got another murder on the calendar before mine, so I’ve got—” At just that moment, my phone rang.

I motioned for Eric to give me a second as I picked up. It was Manny, the clerk/watchdog in Judge Foster’s court.

“Rachel!” Manny whispered. “Stop eyeballing the calendar and get down here. Are you out of your mind? You know what’ll—”

I refused to give Eric the satisfaction of knowing I was already on the verge of being chewed out, so I did my best to put on a relaxed smile. “I’m so glad you called,” I said cheerily, as though I’d just heard from a beloved sorority sister, which it might have been…if I’d ever joined a sorority. “I was hoping we’d get a chance to talk!”

Manny, momentarily nonplussed, sputtered, “What the…?”

I mouthed
sorry
at Eric and again smiled pleasantly. Eric raised a suspicious eyebrow but moved off down the hall.

I waited a couple of beats to make sure he was gone, then curtly answered, “I’ll be down in fifteen seconds.” I snatched my file and scrambled out the door, strategically heading for the hallway less traveled.

I’d made it down two corridors and was just about to dash out to the bank of elevators when a voice behind me said, “In a hurry, Knight?”

I abruptly downshifted and turned back to see Eric standing at the other end of the hall, his arms folded.

Exhaling through my nose in a futile effort to hide my recent sprint, I forced a calm tone. “No, but I figured I should go see what’s happening, just to be on the safe side.”

He shot me a knowing look, turned, and walked into his office.

I trotted out to the elevator, wondering why on earth I’d ever thought I could fool Eric. Four stops and twelve additional bodies later, the elevator bumped to a halt on the fifth floor. I pushed through the shoulder-to-shoulder crowd and made my way to court.

I moved
swiftly into the courtroom, trying to keep a low profile so Judge Foster wouldn’t notice me. The case before mine was still in play, and defense counsel was making an objection that, fortunately for me, kept the judge occupied. But it didn’t shield me from the wrath of Manny. He gave me a stern look and shook his head. I pointed to the lawyers as if to say,
What? No one’s waiting.
Manny just rolled his eyes. I took a seat at the back of the courtroom; that way, when they called my case, it would look to Judge Foster like I’d been there all along. It doesn’t matter whether it’s a murder trial or a blind date—it’s always about strategy.

The judge overruled the defense objection, and the deputy district attorney resumed direct examination with the standard nonleading question: “Tell us what you saw.”

The prosecutor looked vaguely familiar, though his name escaped me. He was in his early thirties, and his carefully coiffed brown hair, perfectly tailored navy-blue suit, red power tie, and French cuffs sporting pricey-looking cuff links said that he didn’t have to rely on his civil servant’s salary to pay the rent. Or that he was still getting a free ride with Mommy and Daddy.

The witness, a surfer dude with long, bleached-out hair, stroked his sparse soul patch and licked his lips nervously before answering. “Uh, he reached out toward that lady, and the next thing I knew, he was lying on the ground.”

“And when you saw he was on the ground, what did you do?” the prosecutor asked. “Did you call the police?”

The witness bent his head and hunched over. He looked away from the prosecutor, and his eyes darted between the floor and the top of counsel table for a few long seconds. Finally he sighed and replied in a quiet voice, “No. I, like, I don’t know. I guess I thought he was just drunk or high or something.” The low hum of whispers and shuffled papers suddenly stopped, opening a vacuum of silence around the witness’s last words. The surfer dude reddened, darted another look around the courtroom at all the eyes now fixed on him, and added defensively, “No one else thought it was a big deal either. I mean, no one called…at least, not for a while.”

Every face in the courtroom—with the exception of the prosecutor, who’d been expecting that answer—reflected the ugliness of the mental image those words had painted: of people callously stepping over a man who lay dying on the sidewalk. For me, that image immediately sparked the thought of Cletus, my homeless buddy, who made his bed just south of the courthouse on most Wednesday nights. I’d been bringing him Chinese takeout from the Oolong Café nearly every week for the past couple of years. I imagined Cletus slowly bleeding out onto the cold concrete while people stepped around him as though he were an overturned garbage can. I didn’t know who this victim was, but it didn’t matter. No one should die like that.

“Objection, irrelevant,” the defense attorney said in a bored voice. I recognized him as Walter Schoenfeld, a seasoned public defender. “And no question pending,” he added.

“Sustained,” the judge ruled, his voice equally flat.

It was just a preliminary hearing, so there was no jury and the prosecution only had to show probable cause, not proof beyond a reasonable doubt. That meant the objections, while legally proper, didn’t matter much. The judge could winnow the wheat from the chaff.

“So you saw the man fall to the ground and stay there. What happened next?”

“I saw the cops come, and one of them came into the shop and asked if any of us had seen anything—”

“Objection to whatever the cops said,” Walter interjected. “Hearsay.”

“Overruled. ‘Did you see anything?’ It’s a question. Questions aren’t hearsay.”

“Do I keep going?” the witness asked.

“Yes.” The judge sighed. “
Overruled
means you’re in the clear.”

The witness went on. “And then Keshia, uh, the other counter person that day, told them she saw me out by the homeless guy before he, ahh…”

Gun-shy after the reaction to his last mention of the man he’d abandoned to die on the sidewalk, the witness trailed off.

“And then you told them what you’ve told us here today?”

The witness nodded.

“You have to answer out loud,” the prosecutor instructed. His
duh
was implied.

“Yeah, yes.”

“Do you see the man in court who stabbed the homeless guy?” asked the deputy district attorney.

“Wait, excuse me,” the judge said, stopping the witness and turning to the prosecutor. “‘The homeless guy’? He had a name, and I’m sure it wasn’t ‘homeless guy.’ Have the People not come up with any identification for him yet?”

“No, Your Honor. The defense refused to waive time, and so far he hasn’t turned up in any database.”

So not only was he left to die on a city sidewalk but we couldn’t even acknowledge his passing with a name. The sheer loneliness of it all was a lead weight in my chest.

The judge cast a disapproving look at the deputy. “Then, Mr. Prosecutor, the appropriate term would be either
victim
or
John Doe
—not
homeless guy.
” He turned to the witness. “Is the person who stabbed the victim here in this courtroom?”

“Uh, well…” The surfer dude nervously looked around the room.

The prosecutor sighed impatiently. Now it was bugging me—I knew I’d seen him around before. What was his name? I mentally scanned the nameplates on the doors in the DA’s office. It took a moment, but I finally had it: Brandon Averill. Though I didn’t know him, I knew the type. He was one of those young Turks who are self-impressed, self-promoting, always on the hunt for fame and glory, and just handsome enough to entice press photographers. Everything about his attitude said this case wasn’t worth his precious time.

After more silence from the witness stand, Averill became visibly irritated. “Try looking over there,” he said, pointing to the defense table.

The defendant pulled his head down toward his shoulders, shrinking to make himself a smaller target.

Defense counsel jumped up. “Objection! Suggestive and improper! Motion to strike!”

Judge Foster raised an eyebrow. “Are you sure you want me to strike that, Counsel? You can’t think of a way to use that brilliant move in front of a jury?” he said, the word
brilliant
soaked in sarcasm.

Walter smiled. “Withdrawn.”

“Indeed,” the judge said.

By forcing the witness to focus on the defendant, Brandon had basically tubed his own case. Now, even if the surfer dude did identify the defendant, Schoenfeld would be able to tell the jury that the witness had been strong-armed into it.

The judge’s tone had been relatively mild, given his notorious distaste for all counsel. I figured he must have a soft spot for Walter. Judge Foster was a big man, six feet three barefoot and about 270 pounds. As smart as he was impatient, he didn’t need a microphone to be heard in court. When an attorney got on his nerves—a more than daily
occurrence
—you could hear it in the cafeteria, five floors below. I’d always liked him because, although he was a tough old bird, he was equally nasty to everyone. In my book, the perfect judge.

The witness did as he was told and looked straight at the defendant, who was so nervous I could hear him sweating.

“Nuh…uh, no,” the witness said in a thin, wobbly voice. “I seen him there, on the street, but I din’t see him stab nobody.”

“But isn’t it true that you told the police at the scene that
this
man,” Averill said, pointing to the defendant, “was the man who’d done the stabbing?”

The defense attorney was on his feet again. “Objection! Improper impeachment!”

But the judge waved him off. “Have a seat, Counsel. Maybe it is, and maybe it isn’t. But let’s cut to the chase, shall we? It’s just a preliminary hearing. No sense pussyfooting around.” The judge turned to the witness. “Did you tell the police this was the man who did the stabbing? Yes or no?”

The witness rubbed his soul patch, clearly torn. “Well…uh. Not
exactly
…Your…uh…Your Worship.”

“Just a simple
Your Honor
will do,” Judge Foster said. “Then what
did
you tell the police?”

“I just said I seen the dude,” he said, turning toward the defendant, a man named Yamaguchi. “He was, like, nearby, you know? But I din’t ever say I saw him, like, stab nobody, you know?”

Brandon Averill was red-faced. “Wait a minute, you mean you’re denying that you pointed out this defendant at the scene and told the cop that you saw him stab that guy?”

“Yuh…uh, yeah,” the witness said, casting a furtive look at the defendant. “I’m denying it.”

Brandon turned back to counsel table and shuffled through some papers as the courtroom again fell silent, waiting. Judge Foster had just opened his mouth to tell the prosecutor something he undoubtedly wouldn’t be happy to hear when Averill produced a report with a flourish and marched up to the witness stand.

“Isn’t that your name?” he asked, pointing to the top of the page. “Charlie Fern?”

The witness mouthed the words quietly. “Uh, yeah.”

“Then read this statement aloud for us,” the prosecutor demanded, pointing to a line on the page.

“Objection! Hearsay! What the cop wrote on that report is hearsay!” Schoenfeld shouted, again on his feet.

“It is,” the judge agreed. “Sustained.”

Brandon Averill’s mouth opened and closed without sound like a netted fish’s while he tried to grab hold of a thought. “It’s not admitted for the truth of the matter. It’s…uh, well, it’s offered to prove the witness’s state of mind.”

“And this witness’s state of mind is in issue because…?” Judge Foster asked, his tone sarcastic. “He’s here to identify the defendant as the stabber, true or false?”

“True, Your Honor. But I—,” Averill began.

The judge cut him off.

“There is no
but,
Counsel.” The judge’s merely annoyed tone of a few minutes ago had given way to truly pissed off. Of all the judges in the building, Brandon had picked the worst one to hear a case this weak, this poorly prepared. The only things Judge Foster hated more than unprepared lawyers were cases that were too thin to be in court. He’d called the district attorney’s filing unit more than once to “order” them not to file cases that couldn’t make it past a preliminary hearing. If a case wasn’t even strong enough to show probable cause, which boiled down to the standard of “more likely than not,” then it shouldn’t be in court, wasting his time.

Now he turned to Brandon Averill, his bushy brows pulled down, his voice ominously low. “Your eyewitness has denied making the statement attributed to him by the officer. If you want to get that statement into evidence, you’ll have to call the officer. This gentleman”—the judge gestured to Charlie Fern, who’d probably never been called that before in his life—“does not seem inclined to go along with the program.”

I could see the skin around Brandon Averill’s collar turn red. “Can I have a moment to call the investigating officer, Your Honor?”

“You may have exactly one minute, Counsel,” Judge Foster said, his voice beginning to rise. “In the meantime, I presume we’re finished with this witness? That is, unless defense counsel would like to try and change his mind?”

“No, thank you,” Walter Schoenfeld quickly replied. “No questions, Your Honor.”

The judge turned to Charlie Fern. “You’re excused, sir.”

Sir.
I had a feeling this was yet another first for the redoubtable Mr. Fern.

I saw the bailiff, clerk, and court reporter brace themselves, having recognized the signs of an
imminent
eruption. Ordinarily I would’ve felt
codependently
nervous for the prosecutor, but Brandon Averill’s cavalier attitude had me actively rooting for an ass-kicking. I sat tall and suppressed a smile. How often in life do you get to see the right foot meet the right ass at kicking time?

Brandon walked quickly out of the courtroom, and when the door swung shut behind him, the entire place fell silent. Everyone looked away from the bench; eye contact might invite the judge to find a new focus for his palpably growing ire. Walter turned and whispered to his client, and the other waiting lawyers huddled and spoke softly among themselves. One minute ticked by, then two.

“Bailiff,” the judge intoned loudly, “please go and fetch our prosecutor.”

“Yes, Your Honor,” the bailiff said.

“And if he hesitates,” the judge added, “shoot to kill.”

The bailiff was smiling as he walked down the aisle, his rubber soles squeaking on the linoleum. Seconds later, he returned with Brandon in tow. The prosecutor was not smiling.

“Your Honor,” Brandon said, out of breath, “I need a recess to locate the officer.”

“No, Counsel, you may
not
have a recess,” the judge’s voice boomed.

The looks on the faces of Clerk Manny and the court reporter told me the festivities had begun. Manny grabbed the water glass he kept on the shelf above his desk, and the court reporter’s expression hardened as she prepared her fingers for flight.

“As you know very well, Counsel, the defense has a right to a continuous preliminary hearing. Do you see all these lawyers lined up here?” the judge shouted in his thunderous baritone.

Averill nodded. I noticed the tips of his ears redden, matching the skin above his shirt collar.

The judge continued, “I’ll be damned if I make an entire calendar cool its heels while you figure out where your witnesses are!”

Brandon touched the knot of his tie like a condemned man fingering his noose. “Perhaps the
defense
will waive the right to a continuous preliminary hearing so the court can take up the next case while I locate my witness?”

“Oh, indeed?” the judge replied acidly. “Let’s find out, shall we?” He turned to the defense. “Counsel, do you waive your right to a continuous preliminary hearing?”

“No, Your Honor,” said the attorney. “The defense does not waive.”

“Shocking,” the judge said. “Any other bright ideas, Mr. Prosecutor? Or, better yet, any other witnesses? Some
incriminating
evidence for a change?”