The Oath (18 page)

A silence settled. After a minute, Elliot spoke. “Do you live here, Judith?”

“She stays over sometimes,” Kensing answered quickly, then added, “Why?”

“I was wondering if she was here last Tuesday morning.”

It was Judith’s turn to ask. “Why?”

Elliot felt he had to tell them that in talking with the hospital staff, checking the records, he had discovered that Eric had been well over an hour late for work on the morning Markham had been hit.

Kensing closed his eyes, squeezed his temples with one hand, looked across at Elliot. “I don’t even remember that. Was I? And what would it mean if I was?”

“It would mean you didn’t have an alibi for the time of the hit-and-run accident.” Elliot turned to Judith. “And you could corroborate the time he left for work.”

“That’s the most ridiculous thing I’ve ever heard!” she said. “Now someone thinks Eric drove the hit-and-run car, too?”

“No one necessarily thinks it,” Elliot said. “I’ve just heard the question, that’s all.”

“What idiots,” Judith said.

“Well, idiots or no,” Elliot said, “you ought to appreciate what other people might be saying.”

“I think I’m getting a feel for it,” Eric answered wearily.

“Tuesday night I was here,” Judith said. “Does that help?”

“Yeah,” Kensing said, “but that was midnight.” He turned to Jeff. “I stopped by the Markhams’. Judith was asleep when I got home.”

Cohn gave the subject a minute’s more reflection, then shook her head. “Come on. You’re in the hospital, working your normal job, which means you’re not some criminal. You’re a regular person with a decent career. Suddenly an accident victim comes in and there’s a good chance he’s going to die. Now it turns out that
you know this person.
Not only that, but he’s somebody you hate enough to want to kill.
To kill!
And just like that he’s delivered to you and you decide on the spur of the moment to take this tremendous and probably unnecessary risk and make sure he dies where they might be able to trace it back to you.” Judith sat straight up, dripping ridicule. “Please.”

“Except that from what I hear, that’s essentially what happened,” Elliot said soberly.

Hardy’s morning had been awful. He’d slept fitfully with Rebecca Simms’s news percolating somewhere in his unconscious. Unknown dead people featured in several half-remembered dreams, and he was up and out of bed before 6:00. After the kids were off at school, damned if he’d call Glitsky for the company. He’d walked briskly alone for an hour, to the beach and back, but he hadn’t warmed up first so the exercise had left him feeling tight and old. One of Freeman’s clients had parked in his space under the building, and by the time he went to get his car back from where he’d parked it on the street, he’d gotten a ticket. Finally, just before lunchtime, after a morning of reviewing bills and other mail he’d ignored for the past week, and before he left the office to go to the
Chronicle
building, he placed a call to homicide when he was fairly sure the lieutenant would be at lunch. And sure enough—his first stroke of luck the whole day—Glitsky had been out.

Now he sat on a low filing cabinet in the cubicle that was Elliot’s office on the ground floor of the
Chronicle
building. His frustration with Kensing surfaced in an over-formal tone. “I confess to being somewhat surprised to learn at this late date that he has a girlfriend. We talked last night on the phone for hours. I asked him to tell me everything important about his life he could think of, and he never mentioned her.”

“Judith,” Elliot said. “Really pretty. But maybe it’s not an important relationship. Maybe it’s one of those modern things where they just have incredible sex every couple of hours, but otherwise don’t even like each other. Wouldn’t that be horrible?”

“Awful.” Hardy remained somewhat distracted. “Do you know when they got together?”

“No. Why?”

“Because it’d be nice to know if she was in the picture before he and Ann separated. Maybe his wife leaving didn’t break his heart after all.”

“You should ask him.”

“I will, but it’d be swell if he volunteered some of this stuff. I didn’t even know he was the leak on Baby Emily.”

“Was he?” Jeff’s open face was the picture of innocence.

But Hardy hadn’t stopped by the
Chronicle
to talk about his client. He wanted to know if Elliot had heard any rumors about a rash of unexplained and unexpected deaths at Portola.

“No.” But the thought of it, of the story in it, lit up the reporter’s eyes. “How big a rash?”

“I don’t really know. My source wasn’t sure of the details, or really even of the bare facts. But she seemed pretty levelheaded, and she was definitely scared.”

“So what did she say?”

Hardy gave him a fairly accurate recounting of his talk with Rebecca Simms. About halfway through, Elliot pulled a pad around and began taking a few notes. When Hardy had finished, Elliot said he’d like to talk to her.

“I can ask her,” Hardy replied, “but I got the feeling that even talking to me made her nervous. Evidently the administration at Portola likes to keep a tight lid on their internal affairs. People who talk become unemployed pretty quick.”

“Okay, so help me. Where do I look?”

They both came up with it at the same time. “Kensing.”

Jeff closed the door to his cubicle and put on the speakerphone. Kensing told him that yes, Judith was still there, but she’d worked the night shift at the clinic and had gone in to bed. He was just hanging out, he said, windows open, reading a book. It was the first one he’d read in maybe a year. Max Byrd’s
Grant.
Fantastic. The best first sentence he could remember reading anywhere. “‘Start with his horrible mother.’ Isn’t that great?”

Elliot agreed that it was a fine line. But he’d called because Dismas Hardy was here with him in his office and they wanted to ask him about something. When Hardy had finished with Rebecca Simms’s story of unexplained deaths at Portola, Kensing was silent long enough for Elliot to ask him if he was still there.

“Yeah. I’m thinking.” Then, “I can’t say the idea hasn’t crossed my mind. But people are
always
dying in the ICU. I mean, they don’t get in there until they’re critical to begin with. So what you’re asking, I take it, is whether people died who shouldn’t have died, right? Are we off the record here, Jeff? I don’t need any more bad press right now.”

“Okay. Sure.” Jeff wasn’t crazy about agreeing, but under the circumstances there was nothing else he could do.

“While we’re being formal,” and Hardy no longer had any intention of being anything but formal in his relations with this client, “this conversation isn’t privileged, either. Just so you know.”

“All right. So what are you suggesting? Some kind of rampant malpractice? Or something more serious?”

“I’m not suggesting anything,” Hardy said. “I’m asking if anything has struck you.”

“Well, I’d be surprised if we’ve filed many eight-oh-fives. I’ll go that far.”

“What are those?” Hardy asked.

“Reports to the state medical board. When a doctor screws up seriously enough for the administration to suspend his clinical privileges for more than thirty days, then the hospital’s supposed to file an eight-oh-five with the state. They’re also supposed to forward it to the National Practitioner Data Bank, which is federal—and never goes away. You get listed in the data bank, your career is toast.”

“So why don’t these things get turned in?” Hardy asked.

“You’re a lawyer and you’re asking me that? You’re a doctor and some hospital writes you up, what do you do? You sue the bastards, of course. You’re a patient who finds out your hospital hired a bad doc, you sue the hospital. Everybody sues everybody.”

Elliot couldn’t resist. “I always assumed you lawyers loved that part,” he said to Hardy.

But Hardy was hearing something else altogether. “Are you telling me, Eric, that Portola’s got these doctors,
and knows it
, and they’re not filing these reports?”

“Let me answer that by saying that we have people on the staff whom I would not personally choose as my own physician.”

“So what really happens when some doctor messes up?” Hardy asked.

“Couple of things. First, you notice I mentioned the magic thirty-day suspension from clinical privileges. So instead you get grounded for twenty-nine days. Ergo no eight-oh-five, right? You’re within the guidelines. And no national database.”

“Are there any Portola doctors on this database?” Jeff was always chasing the story. “How can I find out?”

“You can’t.” Kensing’s voice was firm. “The public can’t get access to it, for obvious reasons. Although prospective employers can. In any event, there’s another way reporting doesn’t happen. It’s probably more common.”

“And what’s that?” Hardy asked.

“Well, the eight-oh-fives are based on peer reviews.”

“Other doctors,” Elliot said.

“Right. And there’s some feeling among doctors, especially now at Portola, that we’re all in this shit storm together, so we better protect one another. If one of our colleagues isn’t making the right medical decisions, okay, you go have an informal discussion, mention the standard of care we all strive for. But we’re all under this intense financial pressure, we’re all working too hard all the time, the bottom line is we’re not ratting one another out.”

“Never?” Hardy asked.

“Maybe with some egregious lapse—I’m talking inexcusably gross fatal error—and maybe even more than one. But anything less, you’re not going to get a peer review at Portola that recommends an eight-oh-five. Most hospitals in the country, I’d bet it’s close to the same story.”

In the cubicle, Elliot and Hardy looked at each other. “What about other causes of death?” Hardy asked. “Maybe intentional deaths?”

This gave Kensing pause. “What do you mean, intentional?”

“Maybe pulling the plug early, something like that.” Hardy considered, then added, “Maybe something like this potassium.”

“You’re talking murder, aren’t you?” No answer was called for. “Do I think that’s been going on at Portola?”

“Do you?” Hardy asked.

“Only in my most paranoid moments.”

Elliot jumped in. “Do you have many of those, Eric?”

Kensing sighed audibly. “There was another patient in the ICU at the same time as Markham. Did you both know that?”

“I thought there were several,” Hardy said.

“That’s true. What I meant was that there was another patient who died.”

“Who was that?” Hardy’s every instinct knew that he was on to something, and that this was part of it.

“His name was James Lector. Seventy-one, never smoked. He’d developed some complications after open-heart surgery and we had him on life support for a couple of weeks, but he was off that and responding to treatment. His vital signs had been improving. I was thinking of moving him out in a few days.”

“And he died?” Hardy said.

“Just like that. No reason I could see. Just…stopped.”

“I would never reveal a source,” Elliot said. “I’d take your name to my grave.”

Hardy ignored him. “So besides this man Lector,” he asked, “how many would you estimate? Deaths you couldn’t explain?”

“Actually, I started keeping track last November. This little logbook I have.”

They waited.

He continued. “I thought I’d go back and see if there was a pattern. Maybe something to get them off my back.”

Elliot asked him why he started keeping track. “I don’t know exactly. I guess now that you ask, I wanted my own ammunition for when they finally got around to firing me. I didn’t think anybody was killing patients on purpose, but we were losing patients we shouldn’t have—like the Lopez boy, Jeff. So if fiscal policies were affecting medical care, I wanted to come back at them with that. I more or less just thought the place was going to shit and I wanted some record of specifics.”

This time, the silence hung for a while. Finally, Hardy asked, “How many, Eric?”

“Not including Tuesday,” Kensing said. “Eleven.”

W
hatever the special at Lou the Greek’s would turn out to be today, Hardy didn’t have a taste for it. He was hoping he could just stick his head through the door and survey the room to see if it contained Wes Farrell.

But no such luck.

Smack in the middle of the lunch hour, the place was wall to wall, three deep ordering drinks. The law continued to be thirst-making work, Hardy noted. He pushed himself into the crowd, got through the crush by the bar, and made a quick tour of the room, exchanging the occasional pleasantry with a familiar face, but mostly moving. If Farrell wasn’t here, he didn’t want to be, either. Not least because he didn’t want to run into Glitsky.

He was still pissed off.

Hardy’s call to Farrell’s part-time secretary had luckily caught her at her desk and she’d told him her boss was scheduled to be in court all day. She wasn’t sure if it was muni, superior, or federal, but she’d guess muni, which meant the Hall of Justice. So Hardy’s hunch was lunch at the Greek’s, and it turned out he was right. Wes had scored a back booth, invisible from the front door. He shared it with a large, nearly full pitcher of beer and a couple of guys who, in jeans and work shirts, were not dressed to impress any judge Hardy had ever heard of.

Sliding in next to Farrell, Hardy asked how he was doing. “So good I ought to be twins.” Wes introduced everybody around the table. It turned out that his two companions—Jason and Jake—were father and son, which Hardy had guessed as soon as he’d sat down. The boy, Jake, maybe twenty years old, was Farrell’s client. They were celebrating (hence the beer) because Jake’s arresting officer hadn’t shown up at his preliminary hearing this morning. Since he was the state’s chief witness, the prosecution had dismissed all charges. Hardy had better manners than to ask what those had been.

So, they both insisted, Wes was a hero.

“He’s always been one of mine,” Hardy agreed. “In fact, that’s why I’m here now.” He turned to Wes. “Something important’s come up. Can I steal you away for a few minutes? You guys mind?”

Just so long as he left the beer, everything was cool.

They worked their way to the side door—less crowd to get through—and out into the alley where now, just past noon, cans of garbage basked, baked, and from the smell, ripened in warm sunshine. Farrell blinked in the brightness, took a deep breath, and frowned. “I think somebody must have died near here. What’s up?”

Hardy was ready, reaching for his inside coat pocket as they walked up toward Bryant and some good air. “I’ve got a list of names here and I was curious if any of them looked familiar to you.”

Farrell took the piece of paper, glanced down at it. “What’s this about?”

“Your favorite hospital.”

A quick look up, then back at the list. Hardy saw his eyes narrow. He stopped and came up again. “Okay. I give up.”

“Anybody you know?”

“One of ’em. Marjorie Loring.”

“She’s one of your clients with the Parnassus lawsuit you’re filing, isn’t she?”

“Not exactly. Her kids are. She’s dead herself.”

“I know. So’s everybody else on that list. Did they do a postmortem on her?”

They’d stopped in some shade in front of the bail bondsman’s office at the entrance to Lou’s. Farrell squinted into some middle distance, trying to remember. Then he shook his head. “They always do. But they probably didn’t spend much time on it. They knew what she died of.”

“And what was that?”

“The big C. She was another one of those ‘whoops’ cases, as in, ‘Whoops, we should have really got around to looking at that a little bit sooner.’”

“But when she died? Was it before her kids expected her to go?”

“They didn’t know how long it would be exactly.” But he pursed his lips, a muscle worked in his jawline. Hardy let him dredge it up. “Although it was, yeah, pretty quick if I recall. One of those, ‘You’ve got maybe three months, unless it turns out to be three days.’”

“Three days?”

“No, no, figure of speech, one of my few flaws. I exaggerate. I think it was like a week, two weeks, something like that.”

“And it was supposed to be three months?”

Farrell shook his head. “But you know how that works, Diz. It was three months outside, maybe as much as six. The reality turned out to be less. It happens all the time. It might even have been a blessing.”

Hardy could accept that on its face. But not if somebody hurried the process along. “Do you think Mrs. Loring’s family would agree to ask for an exhumation?”

Even with the preamble, the question shocked him. “What for?”

“A full autopsy.”

“Why? You think somebody killed her?”

“I think it’s possible.”

Suddenly Farrell’s gaze focused down tightly. A few years older than Hardy, a little softer in the middle, Wes usually affected an air of casual befuddlement. Some might even have read this as incompetence, but Hardy knew he was nobody’s fool. A couple of years before, he’d electrified the city’s legal community with his defense of another lawyer, a personal friend accused of murdering his wife. The case was considered unwinnable even by such an eminence as David Freeman. But Farrell had gotten his client off with a clean acquittal. Now he was giving Hardy his complete attention. “What about the other ten people on your list? Same thing?”

Hardy didn’t want to exaggerate. “Let’s say there are similar questions. I want to talk to my client before we go any further, of course, but after I do….” He let it hang.

Farrell backed into the last wedge of shade. “Last time we talked you didn’t have a client,” he said.

“I’ve got one now. You know Eric Kensing?”

“And you want to call him before I talk to the Lorings because…?”

“Because for some of these names,” Hardy indicated the list, “he was on duty in the hospital when they died. Before we exhume Mrs. Loring and find out she didn’t die of cancer, I’d be happier knowing Dr. Kensing wasn’t on the floor taking her pulse at the time.”

Farrell admitted that that would be bad luck. “So they haven’t arrested him yet, I gather?”

“At least not as of a half hour ago, but things could change even as we speak.”

Farrell narrowed his eyes. “You’re talking Abe?”

Hardy nodded, spoke curtly. “He seems a little fixated.”

“Abe’s not dumb.”

“No, he’s not, but he took Kensing’s statement last night, then left. No arrest. I guess what I’m trying to do is buy my client some time. Abe might get carried away in his enthusiasm. If Kensing gets arrested or indicted, he’s never going to work again. And I’ve got friends who think he’s a hero.”

Wes chuckled, jerked a thumb toward Lou’s. “Those two yahoos at the booth in there think
I’m
a hero. That doesn’t mean anything.” Then, “Did your boy do it?”

“Early on, he said not.” Hardy left it at that.

Farrell’s eyes shifted from side to side. This turn in the conversation—the objective fact of the guilt or innocence of a client—threatened to breach a largely unspoken rule among defense attorneys. But suddenly Hardy knew why Farrell had brought it up. The friend of his, for whom he’d won such a stunning acquittal, in whose innocence Wes had believed with his whole heart, turned out to have been guilty after all. “If you want to be sure,” he said, “you’d damn well better find somebody else who did it.”

Hardy cracked a tiny smile. “Okay, then, that’s who I’m looking for. But my first line of defense is to find out if these Portola patients who are dying before they should are any part of this Markham thing.”

“How do you propose to do that?” Farrell’s expression reflected his deep skepticism. “Certainly Marjorie Loring couldn’t…” He stopped, softened his look. “Maybe I just don’t get it,” he offered. “Let’s pretend her kids let us dig her up in the first place, which is a wild assumption, by the way. So Strout agrees to do an autopsy, also not a sure thing. So then they find, say, that potassium killed her. How in the world does that help your client?”

“Well, right off, if he wasn’t there…”

Farrell waved that off. “Okay. He wasn’t there when Lincoln was shot, either. But it doesn’t mean squat about Markham. And then what if it wasn’t potassium?”

Hardy had admitted these problems to himself, and had gotten to a marginally satisfying answer. “If some other patient at Portola, unconnected to Markham, is another murder—especially if Kensing wasn’t around when it happened—it might make somebody like Glitsky think he’s missing something. He might want to fill in more blanks before they arrest Kensing. At this point, it’s mostly delay, frankly, but I’m out of other great ideas.”

“Well, delay’s always a fine tactic, if it works.” Farrell, clearly, still wasn’t convinced. “But if your man thought these were questionable deaths, why didn’t he ask for full autopsies originally?”

“I asked him the same question.”

“That’s ’cause you’re a smart fellow. And what’d he say?”

“Basically, that all the deaths were expected anyway, and from expected reasons. It wasn’t like these were people in the prime of health who suddenly died. They were dying people who died. Just a little early. The hospital ran postmortems. Sure enough, they were all dead.” Hardy shrugged. “Essentially he put it down to just a general degradation in care at Portola.” He moved closer and whispered conspiratorially, “But listen up, Wes. The point is that if anybody at Portola killed Marjorie Loring, you win no matter what.”

“And that’s because…?” He stopped because he suddenly understood. He could bring a slam dunk lawsuit on behalf of Marjorie Loring’s children. There would be no need to prove general negligence or some other malpractice issue. He could begin billing immediately again. If Marjorie Loring didn’t die of natural causes, but was a homicide committed in the hospital, Wes stood to make a pile in a very short time by doing comparatively very little. “I’ll talk to her kids,” he said. “See what we can do.”

Treya looked up from her desk to the wall clock. She broke a genuine smile and rose from the chair. “Dismas Hardy, Esquire, three o’clock, right on the button. Clarence is expecting you, he’ll be right with you, but he’s got someone in with him for just another minute. Are you coming from upstairs?” she asked. Meaning Glitsky’s detail.

“No.”

“So you haven’t talked to Abe?”

“Not yet. Frannie told me he called last night, but I got home late.”

“He really wants to talk to you.”

“And I him, of course. Maybe you could make us an appointment?”

“Isn’t he coming down for this one? I know Clarence asked him.”

This didn’t strike Hardy as good news, but he covered his reaction with a smile. “Good. Maybe we can chat afterwards.”

He sat and waited, aware of his nerves and his still-smoldering anger. He’d spent countless hours here in the DA’s office—from back when he’d been a young assistant DA himself through his recent trials as a defense attorney. In well over ninety percent of those hours, there’d been conflict between himself and the person on the other side of that door. Since Jackman’s appointment as DA, that had changed. Now in a few minutes, he knew he was about to go back where he belonged, on the defense side. It was perhaps going to be a subtle shift, and hopefully cordial, but a real one nonetheless.

Jackman’s door opened. Marlene Ash was inside. Now that he thought of it, he should have expected that Jackman would have asked her, too. She was, after all, going to prosecute Parnassus and, in all likelihood, his client.

“Diz, how you doin’?” Jackman boomed. “Come on in, come on in. Sorry we’re running a little late.”

He came through the door, smiling and smiling. “If you and Marlene aren’t finished,” he began, giving them every chance, “I don’t mean to rush you. I’m sure Treya and I can find some way to pass a few more pleasant minutes.”

Jackman smiled back at him. Everybody was still friends. “Marlene thought she might want to stay a while, if you don’t mind. There were a couple of things she wanted to run by you. Did Treya tell you I’ve asked Abe to stop by? And here he is.”

Glitsky and Hardy sat on either end of the couch—neither words nor eye contact between them. Marlene still sat in her chair, Jackman pulled another one up. A nice little circle of friends around the coffee table.

Hardy got right down to it. “I understand that in the wake of Mr. Markham becoming a potential murder victim, you’ve decided to convene a grand jury. I hear that they are investigating not just Markham’s death, but the whole Parnassus business situation. In fact, I think it was even my idea, originally, before anybody died. I just wanted you all to know that I really don’t expect any huge public display to recognize my contribution here, although a tasteful bust in the lobby downstairs or a small commemorative plaque in the corner at Lou’s might be nice.”

Glitsky’s scar was an unbroken line through his lips. “The man could talk the ears off a water jug.”

Sitting back, Hardy extended an arm out along the top of the couch, affecting a relaxed pose that he didn’t feel. “As my friend Abe points out, I’m a believer in communicating.” He directed a pointed glance at Glitsky, then came forward on the couch. “I understand what some of you would like to happen next. I talked to Dr. Kensing about an hour ago. He told me that his wife now claims he admitted killing Markham.” Hardy finally faced Abe. “I figure that’s what you must have called me about, to give me a heads-up that you were bringing him in.”

Glitsky said nothing.

Hardy continued. “But of course, since you interviewed my client despite my explicit request that you not do so, perhaps you were prepared to dispense with a courtesy call, too.”

A muscle worked in Glitsky’s jaw. The scar stood out in clear relief.

He went on. “I think the only reason he’s not already in jail is because you decided to wait until Clarence was ready to sign the warrant.” The expressions around the room told Hardy that he’d pegged it exactly. “But that’s not why I’m here,” he said. “I’m here to keep my client out of jail.”

Glitsky snorted. “Good luck.”

“I’m not going to need luck. If all you’ve got is the wife’s story, you don’t have any case that’ll fly in front of a jury. You must know that.”