Matter of Trust (53 page)

‘I thought opening statements around here were open slather?' interrupted David – referring back to Judge Jones's comments after his own objection during Marshall's opening statement. ‘But as everyone seems so fond of reminding me, I am the new kid on the block, so, on this occasion, Mr Marshall,' David turned to the FAP, ‘you are going to have to cut me some slack.'

The jury laughed – out
loud
, and Judge Jones called for order as he suppressed a smile of his own. ‘That's very clever, Counsellor, but as of this moment I don't think the jury are under any misconceptions when it comes to your extensive experience with murder trials.'

David could have kissed him, as he saw the FAP squirm.

‘Having said that, I am going to have to ask you to watch your step, Mr Cavanaugh,' Jones continued. ‘You are here to present your own case, not that of the prosecution.'

‘I am sorry, Your Honour,' apologised David before turning his attention back to the jury, taking another step toward them and meeting them eye to eye.

‘Someone had sex with Marilyn Maloney on the night of her death. Someone other than Chris Kincaid. The medical examiner will testify to the fact that, even though the attacker used a condom, the internal scarring coupled with further medical evidence that a defensive struggle took place, indicate that this sexual intercourse was most likely non-consensual. In other words, Marilyn Maloney was raped.' David shook his head. ‘But did the prosecution follow this lead? No. Did they issue any other DNA examinations other than the one they conducted on the defendant? No. Did they even consider that this unidentified man – a man who most likely
raped
the victim mere hours before her death – had anything at all to do with Marilyn Maloney's murder? No.'

David was right in front of them now, resting his hands on the rail and leaning slightly forward so that he became one of the fourteen.

‘When I was in law school,' he said, lowering his voice just a little, ‘a wise old professor once came to one of our lectures with a carton of a dozen eggs. He said murder trials were much like that carton in that it
was the prosecution's job, given they have the burden of proof, to fill their carton with evidentiary eggs with as little spillage as possible. But when he opened the carton, when he showed us a set of eleven perfect eggs and pointed to the one that was missing, he said: “You see there, that one missing egg is more important than all the other eleven put together – for it is the piece of evidence that the prosecution either do not have or cannot prove. It is the circle of nothing that cannot be accounted for. It is the missing piece of the puzzle – it is reasonable doubt”.'

David paused. I am almost there, he told himself. There is just one more thing I need to impress upon them before this part of my job is done.

‘Mr Marshall was right again when he urged you to listen to the voice of the victim – because she was the one who was raped and murdered, the one who looked into her killer's eyes before he embarked on a campaign of subterfuge to send Chris Kincaid to jail in his stead. I mentioned that the prosecution has the burden of proof – which means it is their responsibility to
prove
Chris Kincaid is guilty and not the other way around. But if they fail in their duty, if they have been remiss in their responsibility to find the real killer responsible for Marilyn Maloney's death, then I am afraid the job of justice falls squarely onto you.'

David took a deep breath, his ribs still smarting from Sean's final punch.

‘So I urge you to look hard at the evidence,' he told them, ‘to look long and hard so you can see what she saw. And when this is all over and you realise that the dozen is still at least one egg short, then it will be time for you to do your duty – and send an innocent man home.'

Later that night

‘T
hey're gone,' said David as a squinting Harry McNally stared at him through his wire-screen door. It was almost midnight and David had obviously woken him – the detective was wearing an old Newark PD T-shirt over a pair of red and green striped boxers, towelling slippers on his feet.

‘Who's gone?' asked McNally, forcing open the door with a squeak.

‘The gypsy moths.' David pointed at the porch light above him before entering the house without being asked. ‘I thought summer was when they were at their worst?'

‘I painted the patio,' said McNally. ‘They hate the smell.' He led David into the living room. ‘I gave the walls in here a lick as well,' he said self-consciously, knowing David would notice the change immediately. ‘In fact, I gave the whole place a bit of a spruce up. I had a whole lot of white left over from doing my neighbour's garage.'

‘It looks good,' said David, sensing this little home improvement was symbolic of McNally's attempts to move on.

McNally nodded. ‘You want a beer?'

‘No. I won't be here long.'

‘Coffee?'

‘Can't sleep as it is.'

The detective nodded again. ‘So, you're just here to shoot the breeze.' McNally gave him some space.

‘We don't have any choice,' said David then. He had been thinking about it all day, hell, for most of the past week. He hadn't thought it would come down to this, but in the end, it had.

‘Choice about what?'

‘About going after Cusack's DNA without a warrant.' And there was the line he was willing to cross. ‘It's not exactly
illegal
.'

‘It's not?' McNally raised his eyebrows and gestured for David to take a seat.

David sat on the edge of the freshly steamcleaned sofa. ‘I've been doing some research. There was this case, in Morris County, some detectives knew this guy was guilty of a murder but they just couldn't tie him to the crime. So they tailed him, waited until he smoked a cigarette, then they picked up the butt and had the saliva on it tested. It matched to some blood found on a towel in the victim's apartment. The guy's lawyers obviously hightailed it into court accusing the cops of using illegal means to obtain his client's DNA, but the detectives argued it was necessary to secure probable cause for an arrest. They even had a name for it – called it “surreptitious sampling” – and they got away with it, McNally. The judge eventually ruled the sample admissible.'

David searched McNally's face for some sort of reaction, but got none. ‘McNally?' he said.

‘You want me to list the number of times that kind of police work has landed various cases in the crapper?'

David said nothing.

‘In case you haven't noticed, Cavanaugh, we're not the detectives trying to secure an arrest. In your scenario they had no other suspects, in ours we're defending a man already charged with the crime.'

‘You're a cop,' said David.

‘I'll be labelled a fucking turncoat as soon as the FAP finds out what I've been up to.'

A frustrated David collapsed back in his seat. ‘So you won't even consider it?'

‘Well, I didn't say that.'

David sat up again, praying he heard the detective right. ‘So what exactly
are
you saying?'

‘That what you propose could get us in all sorts of shit, but that we're in all sorts of shit already, so one more gallon of the stuff isn't going to affect us one way or another.'

David smiled. ‘So you'll tail Cusack and wait until he leaves something we can test? I don't think the kid smokes, so a butt is out, and he practically shaved his head but . . .' David was thinking on his feet. ‘The kid has to eat and drink sometime. By all accounts, his mom is no Carol Brady so I am gathering he frequents restaurants, cafes, probably even bars. If worse comes to worst, you could always go through his trash.'

‘Geez, Cavanaugh, why do you give me all the good jobs?'

They both smiled.

‘There is one other problem,' said David, referring to a hurdle he was not sure how to jump. ‘We don't have a copy of the initial DNA sample taken from underneath Marilyn's fingernails – which means that, even if we manage to get the kid's DNA, we have nothing to compare it to.'

McNally said nothing, merely got to his feet to make the same journey he had made weeks ago – the one that saw him trek down his corridor and return to the previously dark and dingy living room with the faxed copy of the Hilton's guest list in his large right hand.

This time he returned holding two things – some sheets of paper and a small envelope. The envelope was yellow and had some typing on the front, and it made a chinking noise when McNally placed it on the coffee table between them.

‘What's that?' asked David as he pointed toward the envelope.

‘It's an envelope.' McNally seemed to be enjoying drawing this out.

‘Jesus, McNally, what's in the freaking envelope?'

‘A slide,' McNally smiled. ‘An original slide of the DNA taken from the skin sample found underneath the victim's fingernails. And this,' he raised his other hand, ‘is a copy of the report that goes with it.'

David couldn't believe it – McNally had been one step ahead of him the entire time. ‘How did you . . . ?' he began.

‘The ME and I go way back. She's a good woman.' McNally's smile stretched a little wider.

A grateful David nodded.

‘There is one other problem,' said McNally. ‘Even if we get Cusack's DNA, we're gonna need someone to compare these two samples on the sly.'

‘That's okay. I know an FBI agent back in Boston who used to work at their lab in Quantico.'

‘The ex-cop,' said McNally, obviously remembering Joe Mannix's mention of Susan Leigh.

‘That's her. In fact, I'll fast-track this original sample to her in any case – get her to run it through as many national and international DNA databanks as possible. Something tells me Marshall stopped short the moment he got a negative from the New Jersey network.'

‘He wasn't exactly keen to pursue it.'

David nodded once again. ‘How long do you think it will take?' he asked after a pause. ‘To get Cusack's sample, I mean.'

‘Not long. It's not like I haven't tailed a perp before, Cavanaugh.'

‘And if we manage to get a match?' David was getting ahead of himself, but even the possibility of finally connecting Will Cusack to Marilyn's death was invigorating.

‘Then you have to work out a way to avoid Cusack's sample being thrown out of court.'

‘I'll work that out. There is no way I'm nailing this kid just to see him walk.'

‘Then we might have something here, partner.'

‘Crazier things have happened, McNally,' smiled David. ‘Crazier things have happened.'

W
ill Cusack was on his third coffee at the early-opening Greasy Franks – barely a triangle of scratched red formica visible under the mountain of
Star Ledgers
,
New York Times
and
USA Todays
.

The fingernail DNA was for real. The various reports had confirmed it, and Will was already in the process of trying to work a way around it. But first things first, he had to deal with Connor Kincaid who, along with Jack Delgado, had just pushed through Frank's finger-smudged front door.

‘Hey,' said Will as the boys approached. Will had enlisted Jack's help in getting Kincaid here this morning – according to Jack, apart from the requisite court appearances, the kid had gone into some sort of self-imposed hibernation.

‘So what the fuck happened?' he asked Connor as he and Jack slid into the booth across from him. Will hadn't attended the first day at trial yesterday – deciding it was better to play things safe.

‘I thought you were gonna be there,' responded Connor, a new edge to his tone. And it took all of Will's reserve not to reach across the table and grab the nervous-faced fuck by the collar of his perfectly pressed Polo Ralph Lauren shirt. If this ungrateful sap was the one who'd put Cavanaugh on to him, then he was going to pay. But once again, first things first.

‘Jack and I agreed it might be best if we maintained a little distance,' said Will, knowing he needed to milk Connor for as much information as possible.

Jack blinked, his eyes downcast.

‘But why? I thought we were a united front?' asked Connor, his fingers tapping anxiously on a small square of paper-free tabletop.

‘Sometimes less is more, Connor. We'll be in court, don't worry, we just thought that on the first day it was better if the focus was solely on your family.'

Connor met his eye, his jittering stopping momentarily, until he nodded, and returned to his fidgeting once again. ‘I'm sorry,' he said. ‘It's just that sometimes I feel like everyone is shutting me out. My parents are trying to protect me, you're making decisions without me.' Connor met his eye once again. ‘For example, what happened with the pocketwatch? I thought you'd have brought it back by now. I don't even know why you took it in the first place, and sooner or later my mom is going to notice it's missing.'

Will shot a look at Jack. His oldest friend's eyes were narrowing in confusion, and Will knew he needed to change the subject fast.

‘Look, Connor, I'm just trying to hold this thing together – for us, and for your dad. That's been my motivation all along, right?'

Connor managed a nod.

‘Will's just trying to help, Connor,' said a softly spoken Jack.

‘Exactly,' confirmed Will, ‘which means I need to stay informed. The papers tell me shit,' he added, shoving at the
Times
with his palm. ‘They called yesterday a dead heat – but it reads like the prosecutor was the one with all the evidence.'

Truth be told, the whole ‘dead heat' thing worried Will more than just a little. Cavanaugh had obviously gone into trial all confident – and had even managed to convince the jury that an alternate theory was to follow. Which meant Will knew he needed to brace himself for a counter move, given time was short, and that, after all, he was the alternate theory.