Acts of Malice (18 page)

‘‘Let’s go,’’ she told Bob. She put her arm around him and they walked past the groups of laughing, carefree people toward the Bronco.

Sandy came in late on Monday with a self-satisfied look on her face, carrying a paper bag with a lot of envelopes in it. Clearly, something good had happened.

‘‘So what’s new?’’ Nina said. She was in the conference room, pouring freshly foamed milk into the soup bowl she called a coffee cup, getting buzzed for a deposition in a medical malpractice case that was scheduled for nine A.M. Her mind wasn’t on it. She was still mulling over the significance of the argument she had overheard at the Festival of Lights. She had already called Tony.

Sandy continued the ritual of putting away her coat, pulling out her chair with the lumbar pillow just so, and descending as slowly as a bathysphere into it.

‘‘I’ve been wondering about Joseph,’’ said Nina.

‘‘Were you now?’’

‘‘You said you used to live with him.’’ These promptings had yielded no information in the past, but today Sandy seemed ready to talk.

‘‘I was married to him. For fifteen years.’’

‘‘Is—he—Wish’s father?’’

‘‘Yep.’’

‘‘What happened?’’

‘‘Irreconcilable differences,’’ said Sandy. There was something wickedly satirical about Sandy’s use of this vague legal phrase used as the grounds for almost all divorces in California. It was her way of answering, none of your business.

‘‘So you’re moving in together?’’

‘‘Uh huh.’’ Sandy turned on the computer. ‘‘You checked the answering machine yet?’’ she said, keeping her eyes on the blue screen with its smiling apple.

‘‘Sure did. So how’s it going? Your relationship?’’

‘‘The depo still on?’’

‘‘Yes, the depo’s on.’’

‘‘Because I put the file on your desk.’’

‘‘That’s fine. What about Joseph?’’

‘‘What about him?’’

‘‘My question exactly.’’

Now the CD player went on. A few tentative guitar chords, the Rio audience yelling,
‘‘Mas forte!’’
Louder! Botelho went into his first samba number for the ten-thousandth time, and then . . .

‘‘Ah,’’ Sandy said. She began to sing along with the music. ‘‘Love takes its rhythm from the sea, seeking and leaving eternally.’’ Her voice sounded like fingernails on a chalkboard, but Nina appreciated the sentiment.

‘‘It’s love, huh?’’

‘‘It better be. Since we were moving back in together, we decided we might as well get married next week. Again.’’

‘‘Well! Congratulations!’’ Nina said when she had found her tongue.

Sandy reached in the bag and handed her one of the envelopes. ‘‘You can come if you want,’’ she said. Inside, a white card announced the wedding of Sandy and Joseph at a home near Markleeville on Thanksgiving Day. It was such a plain little card, plain and simple and really quite dignified, like Sandy.

Nina felt herself getting all choked up. Sandy was getting married—to Wish’s father—it was all so romantic . . .

‘‘Look, I’m not gonna quit,’’ Sandy said. ‘‘So get hold of yourself.’’

‘‘Well, that’s great. Great news. I’d love to come. Oh, shoot. Bob will be in Germany.’’

‘‘Bring along the boyfriend if you want.’’

‘‘Can I help with anything? You know, the arrangements?’’

‘‘Just show up.’’

‘‘I really wish you—and Joseph—all the best, Sandy.’’

‘‘He’s a good old man. He’ll do me fine. Now we better get to work.’’

Only when the day was over, and Sandy was turning off the lights as they headed out into yet another snowfall, did Nina think to ask, ‘‘Why did you decide to get married on Thanksgiving, Sandy?’’

‘‘We thought it would be about right. It’s a big Native American holiday, after all,’’ Sandy said.

‘‘Hmm . . . I never thought about Thanksgiving that way.’’

‘‘Oh, yeah. It marks a very special day in Native American history. Remember, the Pilgrims were starving, so the Indians gave them seed and taught them how to plant. So at harvest time the Pilgrims had plenty of food and survived the winter.’’

‘‘I remember. From fourth grade.’’

‘‘Yeah. The Indians still talk about the day of the big feast. We even have our own name for it. We call it the Hey You Guys Day.’’

‘‘I never knew that.’’

‘‘Mmm-hmm . . . The Indians came, bearing gifts, and they sat down with the Puritans and everybody ate plenty of corn and turkey, and after dinner the Puritan governor belched and took another pull on the peace pipe and turned to Chief Massasoit and said—’’ Sandy paused.

‘‘What? He thanked them? What?’’

‘‘He said, ‘Hey you guys, you can get started clearing the table now.’ ’’

15

‘‘I DID A thorough examination the first time around. Went to the site, performed the autopsy, spoke with the defendant about what happened. Looked like an accident to me.’’

Doc Clauson’s testimony so far had more holes in it than a Moscow theater curtain. He had shown up at the courthouse visibly nervous in his trademark red bow tie and Nina had caught him smoking in the sun outside the courthouse. Collier was questioning him right now, trying to explain away that first report that called Alex’s death an accident.

To the left of the witness box, Judge Flaherty took notes, pinched his pouchy cheeks thoughtfully, and stared out into space, communing with the spirits. He would decide in the next day or two if the charges against Jim would stand.

‘‘And then what happened?’’ In his navy jacket and gray pants, Collier had the look and resolute attitude of a military man on a mission, like a true officer of the court. He had come in early like Nina and set up his files, stopping only to say Hi with utter impersonality, never letting so much as a change in the rhythm of his breathing indicate that he felt any different about her than any other defense attorney.

Due to the sunny weather, the conviction that she had a defense, or the dreamless sleep of the night before, Nina felt less nervous than usual herself. She felt more like predator than prey, reckless, almost high spirited.

‘‘I received additional information,’’ Clauson was answering.

‘‘Go on.’’

‘‘A statement by the defendant’s wife.’’

Jim, sitting beside Nina, nudged her. She nudged back, saying, ‘‘Objection,’’ at the same time. ‘‘The contents of any such statement are hearsay and inadmissible.’’

‘‘I haven’t asked him the contents yet, Judge,’’ Collier protested.

‘‘You will,’’ Nina said.

‘‘As a matter of fact, I
would
like to put the statement in evidence, Judge, so we might as well argue it,’’ Collier went on. He handed Nina and the judge’s clerk copies of Heidi Strong’s statement.

‘‘If the Court reads the statement, since the Court is deciding the facts without a jury, the damage is done,’’ Nina said. ‘‘The information has entered the judicial, uh, sphere. Therefore, I request that the Court decide the defense’s objection without reading the statement.’’

‘‘Now how can I do that, counsel?’’ Judge Flaherty said.

‘‘I will stipulate that a statement was made to the South Lake Tahoe police on or about October 24th, that the statement was made by Heidi Strong, and that it deals with an alleged conversation between Heidi Strong and her husband, the defendant herein. Under the rules of evidence, Your Honor, Doc Clauson can’t testify about her statements. It’s hearsay.’’

‘‘As to the hearsay argument, Judge, this statement can still come in because of the exception which applies if the witness is unavailable.’’ Collier handed out more paperwork. ‘‘This is a declaration prepared by the investigator assigned to work with me on the Strong matter, Sean Voorhies, indicating that the witness appears to have fled the jurisdiction. Basically, she has disappeared.’’

Nina read it quickly. Heidi Strong had provided a confidential address on the North Shore to the district attorney, to be kept confidential, but she had left that address and could not be located.

‘‘The witness seems to have absconded, Ms. Reilly. Under the circumstances, this statement is all we have and it can come in, I would think,’’ said Judge Flaherty.

‘‘I would like to question the investigator about whether all efforts have really been made to find Mrs. Strong,’’ Nina said.

‘‘Oh, this isn’t a full-fledged trial, counsel,’’ Judge Flaherty said, frowning. ‘‘The investigator’s statement will do.’’

‘‘Very well. But there’s another very clear ground for objection. Because the person giving the statement is married to the defendant, the spousal communications privilege is applicable. The conversation cannot be admitted under Evidence Code section 980.’’

‘‘Mr. Hallowell, will you stipulate that the parties were married at the time of the conversation alluded to in this statement?’’ said the judge. He still had not looked down at Heidi’s statement.

‘‘I have no information to the contrary,’’ Collier said. ‘‘But as the Court knows, the strict rules of evidence don’t apply in a preliminary hearing—’’

‘‘But this is precisely the kind of situation where they should be applied in the Court’s discretion, Your Honor—’’ interrupted Nina.

‘‘The statement makes a strong showing of malice of the defendant toward—’’ Collier threw in.

‘‘Objection! Objection! He’s leaking the contents! This is a blatant attempt to prejudice the Court!’’ Nina shouted. ‘‘I request sanctions be applied to Mr. Hallowell for pulling that trick! He knows he’s got no chance of getting this statement in at a trial. We can’t cross-examine this lady, Your Honor. How can the Court judge her credibility—’’

‘‘Pipe down, Ms. Reilly,’’ said the judge. ‘‘Both of you, let me think for a minute.’’ He shuffled the two sheets of Heidi’s statement in his hands as though he had a great blackjack hand, playing with it, and Nina thought, he really wants to read it and if he does, Jim will definitely be bound over. But she knew Flaherty to be scrupulously fair, and he wouldn’t like the way Collier had deliberately brought in the malice bit.

‘‘Here’s the thing,’’ Flaherty finally said. ‘‘It sounds like section 980 is going to knock this statement out at trial, so why should I make a decision regarding the necessity of a trial based on it? It’s one thing to relax the rules of evidence, Mr. Hallowell. It’s another to relax them into nonexistence. Call it my great respect for marriage. Now you continue questioning the witness and keep away from the contents of the statement.’’

‘‘Very well, Your Honor,’’ Collier said. Nina totted up the score mentally. Statement not read, a goal for Jim. Judge knows Jim told Heidi something that indicated malice toward Alex, goal for the prosecution. Score: one to one.

She glanced toward the chair beside her. Jim was looking pleased. He didn’t quite realize it was only a tie.

Doc Clauson had been forgotten during this exchange. Now Collier turned back to him and Nina saw him tense.

‘‘When did you receive this statement by Heidi Strong?’’ Collier asked him.

‘‘Three days after the death of Alex Strong. The body had already been released and cremated.’’

‘‘And after receiving a copy of this statement, what did you do, if anything, in response to the information contained therein?’’ Flaherty’s ruling necessitated the klutzy form of this question.

‘‘I reopened the investigation. Now, how can I give my reasons for reopening if I can’t talk about this statement?’’ Clauson asked the judge, folding his bony arms in their short sleeves.

‘‘I’m afraid you’ll have to restrain yourself, Doc,’’ said the judge.

‘‘It’s not right,’’ Clauson said.

Collier coughed, shifting attention back to him. ‘‘What new investigation did you perform?’’ he asked.

Clauson unbent his arms. Nina could almost hear the creaking of the bones as they repositioned. He was getting old, fragile even, she realized to her surprise. She remembered her first case against him—how frightening it all had been, including him. Now, she saw through the thin skin to his vulnerabilities.

‘‘First,’’ Clauson replied, ‘‘I went over the autopsy photos, my notes, and my report again. Got interested in the photos that showed some patterning on the epidermis above the mid-torso area that I had originally attributed to the fall.’’

He pulled out a group of photographs, which Nina had already received but which Flaherty would be seeing for the first time. Collier had them marked, and Flaherty studied them intently.

‘‘We have some blowups,’’ Clauson said. He nodded and a uniformed policeman began projecting slides on the screen in the corner of the courtroom. Several views of the faint striped pattern on skin appeared.

‘‘I looked at these again, and I knew we might have a problem,’’ Clauson said. ‘‘Didn’t look natural to me. So I examined the clothes again.’’ This time, the courtroom was treated to a gory frontal view of Alex Strong, naked except for the black shirt.

Nina glanced over at her client, who sat quietly with his hands folded, studying the photographs, just following the action, seeming unmoved, or else keeping any emotional response to the photographs private.

‘‘Clothing was all wrong,’’ Clauson said. ‘‘Injuries to internal organs, but some tearing and damage to the front of the shirt worn against the skin. Since the back of the parka was all torn up from the fall, and even the back of the bibs which covered that area ripped pretty good—’’ He showed pictures of the bibs and parka. ‘‘How come, I ask myself, the fronts of the parka and bibs weren’t torn up? So I looked again at the patterns and I started thinking about what weapon might cause such patterning.’’

‘‘And did you find such a weapon?’’

‘‘Yup. Delivers foot-pounds with sufficient pressure to crush and tear the liver in half, common object worn while skiing—’’ He paused for dramatic effect, then said—‘‘person in ski boots.’’

‘‘Did you subsequently test any ski boots to determine if there might be similar patterning found?’’

‘‘We got the defendant’s ski boots, the ones he was wearing the day of the incident. Tecnica Explosion 10s. Checked ’em out. Have a look, Judge.’’

A blowup of the soles of Jim’s Tecnicas. Short striped patterns.

‘‘We have the boots, already marked,’’ Collier said, and handed them over.

‘‘Seen these?’’ said the judge to Nina.

‘‘Yes.’’

The clerk handed up the dirty boots one by one, wrapped in plastic, and Flaherty turned one of them over and studied the sole.

‘‘Didn’t trust myself, so I brought in a guy from the forensics lab in Sac for a second examination and report,’’ Clauson continued. Nina objected without success, and he passed along that report to the judge.

Flaherty read the damning conclusion that the patterns matched.

‘‘Anybody can see it,’’ Clauson said, pointing to the screen.

Jim’s emotions could no longer be contained. He squirmed in his chair, whispering, ‘‘Do something!’’

‘‘Objection. Nonresponsive. Move to strike that last sentence,’’ Nina said.

‘‘Overruled.’’ Flaherty never lifted his head. He was rereading the report.

Having made his point about the patterning, Collier started in on the black fibers found on the soles. They, too, had been double-checked in Sacramento. An evidence bag containing the fibers was introduced. Collier led him smoothly through the scientific testimony.

‘‘A perfect match to the shirt,’’ Clauson concluded.

The lunch hour had arrived, and with it Clauson’s big moment. Collier read his question from his notes, which, legalese aside, was: Based on your experience, based on the autopsy findings, based on the fibers, the skin markings, the state of the clothing, what was the amended finding of the Office of the Coroner?

‘‘Homicide,’’ Clauson said. ‘‘Turned over to the police for further investigation.’’

‘‘Hello, Doctor Clauson,’’ said Nina after lunch. She used the formal address intentionally. He preferred ‘‘Doc’’ because it entrenched him firmly in the old-boy network here. She did not want to propagate the impression that his authority should have a lick more import than the testimony Ginger was going to give.

Her mood hadn’t changed. She felt ruthless, like a lioness stalking almost invisibly in the shadowy bush, eyes locked on a pale wildebeest in a red bow tie.

‘‘Hello.’’ The wildebeest gave her a testy hand wave.

‘‘Your testimony is that you made a major mistake the first time around as to cause of death?’’

‘‘Understandable. As I’ve been trying to explain—’’

‘‘You originally thought it was an accident?’’

‘‘Correct. But—’’

‘‘You had the autopsy photos and the clothing the first time around?’’

‘‘Yes.’’

‘‘You found nothing suspicious about the photos or clothing the first time around, did you?’’

‘‘Further evidence came to my attention. Mrs. Strong’s statement—’’

‘‘Did you ever talk to Mrs. Strong?’’

‘‘No. She didn’t want to talk to anybody.’’

‘‘So anybody can write down anything and you’ll jump up and change your findings and call it a homicide?’’

‘‘Objection. Argumentative.’’

‘‘Sustained. No need for posturing, Mrs. Reilly. There’s no jury present.’’

The judge did not like her hardass pose. Fine, she would relax her shoulders ever so slightly. ‘‘Now, I’m going to show you some blowups of some patterns, sir, and ask you which if any of the patterns also seem to you to match the marks on Alex Strong’s skin.’’

That drew a storm of argument from Collier which went on for almost fifteen minutes. In the end, Judge Flaherty’s curiosity got the best of him and he ordered Clauson to go ahead.

‘‘But I can’t see the blowups well,’’ Clauson said.

‘‘Here,’’ Nina said, handing him five eight by tens. ‘‘You can see these, can’t you?’’

‘‘Certainly.’’ He muttered to himself as he looked at the pictures which had been shot with rulers included for scale, in the same sharply contrasting black and white as the skin photos.

‘‘You want some sort of preliminary opinion?’’ he said.

‘‘That’s right,’’ Nina said.

‘‘They all look like the bottoms of ski boots. They all could match the photos of the skin markings.’’

‘‘Thank you,’’ Nina said. ‘‘Now please turn the first four pictures over, sir, and read to us what they represent. I will represent to the Court that our forensics expert, Ginger Hirabayashi, took these photos and identified them and is available today to testify to that effect if the court deems it necessary.’’

‘‘Okay, then, turn the first four over, Doc,’’ said the judge.

Clauson turned them over one by one and read, ‘‘Dalbello ski boots, men’s size eleven. Lange ski boots, men’s size nine and a half. Nordica ski boots, women’s size eleven. Dolomite VXR ski boots, size ten.’’ He looked up. ‘‘I’d have to look at these photos in the lab, with better equipment, and I’d want a better look.’’