Missing Justice (31 page)

I noticed that four of the five of them watched me as I passed. Men tend to do that when there’s nothing else going on. Although they all looked unhappy, Roger looked particularly pissed. At a formal level, I’d hidden my role in what brought them here, but Roger knew me well enough to suspect something.

The fifth guy, Minkins, was still wearing his hat and turned his head the other way when I walked by. That’s what we lawyers call consciousness of guilt. Like a suspect who flees, Minkins was hiding something. I was pretty certain that the something was his snooping around at the library.

Judge Prescott walked out of her chambers promptly at ten. She noticed Gunderson
et al.
in the front row. “I see we’ve got some newcomers, but where, pray tell, is Mr. Szlipkowsky?”

“I haven’t heard anything, your honor,” I said, “but I’m sure he’ll be here. He left me a message last night saying he had subpoenaed some additional witnesses.”

I heard someone huff behind me and guessed it was probably Gunderson.

Prescott ordered her clerk to tell her as soon as Slip arrived and then headed back to her chambers. Some judges enjoy the chitchat that goes on with the lawyers before proceedings commence. Not Prescott.

Her departure left the courtroom awkwardly silent. Since I was supposedly an innocent, I figured I’d better play the role of cooperative prosecutor. When I walked back toward Roger and Townsend, I noticed that, once again, Minkins looked away.

“Hi, Townsend. How are you holding up?”

“Fine,” he mumbled, “under the circumstances. Thanks.” Then he went back to staring at the bench in front of him.

“Well, I don’t think you’ll have to testify today. The defense attorney said he served some subpoenas last night, but his message didn’t say anything about calling you.”

He just nodded. I was beginning to think he might actually be on something. Roger rolled his eyes at me. “I went ahead and told Townsend about the subpoenas. As you can imagine, Jim Thorpe called me right away when they were served.”

“So I assume the two of you have talked about the possible conflicts of interest involved. I mean, Dunn Simon is now representing multiple witnesses in the same case.”

Big surprise. According to Roger, they’d already discussed the matter, and the whole lot were snug as bugs with the current situation. That’s the problem with a rule that lets the conflicted lawyer be the one who discusses the conflict with the clients; I seriously doubted if Townsend had gotten the big picture. If he was in a position to understand how wrapped up Gunderson was in his wife’s life, he wouldn’t feel so comfortable about sharing a lawyer with him.

Before Roger got a chance to grill me about the coincidence of Slip’s eve-of-hearing decision, I heard tennis shoes squeaking outside the courtroom. The door wrenched open, and in walked Slip, out of breath, using one hand to hold all his belongings while his other hand fumbled to fasten his belt buckle.

A nice person would have rushed over to help him. I bent over laughing.

“I’m sorry, but that looks really bad.”

“And they say men have dirty minds. I was already running late, and then I got stuck at security. It’s getting as bad as the airport down there.”

He shoved his briefcase in my arms so he could finish the belt, then started to steer me into the hallway. We never made it to the door.

“Nice of you to join us this morning, Mr. Szlipkowsky.” Prescott was out of her chambers and ready to go.

“My apologies, your honor. I was delayed at security.”

“And yet everyone else managed to be here on time. Amazing. Don’t let it happen again.” As she was telling the sheriffs deputy to bring Jackson in from the holding cell, Slip continued to throw me eager looks. He definitely wanted to talk.

“I’m sorry, counselors, is there a problem?”

We both shook our heads like kids who’ve been caught roughhousing in the classroom. Whatever Slip had to say to me, it was going to have to wait.

Jackson took his place at the defense table, looking the worse for wear after nearly a week in jail.

Prescott called the case and put us back on the record. “OK, when we left on Friday, it was unclear whether the parties intended to call additional witnesses before I ruled. Where do things stand now? I see Jim Thorpe is with us this morning from Dunn Simon.”

Thorpe started to rise, but Slip beat him to the punch. When a court’s viewing a dispute cold, it’s always better to get your side out first.

“Your honor, last night my investigator delivered subpoenas to Larry Gunderson and William Minkins. Larry Gunderson is president of Gunderson Development, which owns the property where Ms. Easterbrook’s body was found and where my client was employed as a landscaper. Mr. Minkins is an employee at Gunderson and hired my client to work at the site. As I have investigated this case, it has become clear to me that both Mr. Gunderson and Mr. Minkins hold relevant evidence that casts serious doubt on the guilt of my client. Just to give you one example

“

Prescott cut him off. “Wait a second. No need to get into your proffer before there’s been an objection. Mr. Thorpe, why don’t you go ahead and approach? Your clients may remain seated.”

“Good morning, your honor. Jim Thorpe from Dunn Simon, representing Gunderson Construction, its principal officer Larry Gunderson, and its employee William Minkins. I understand that your honor quashed a subpoena on Friday in this case after Mr. Szlipkowsky tried to haul in a member of the Metro Council for a fishing expedition. This morning, he’s at it again with my clients. They know nothing about this case, have been pulled away from business on absolutely no notice, and wish to be relieved from this court’s jurisdiction forthwith.”

Forthwith? That’s why big-firm lawyers often get their asses handed to them in jury trials. Who the hell says forthwith?

Prescott sighed and gave Slip a look to kill. I wasn’t sure how she’d done it, but somehow it seemed as if her bun had been pulled back even more tightly during Thorpe’s statement. “Now, Mr. Szlipkowsky, why don’t you proceed with your proffer “

“Excuse me, your honor,” I interrupted. “I just wanted to make sure all the parties realized that the media are present in the courtroom.”

I gestured toward Dan Manning from the Oregonian at the back of the room, sitting with a few others who presumably were also reporters. Cameras aren’t permitted in Oregon courtrooms, and lawyers who don’t spend a lot of time around the courthouse don’t always recognize the media. Just me, trying to be helpful.

It got the response from Thorpe that I wanted. “In that case, your honor, we request that the proffer be delivered in chambers. Whatever Mr. Szlipkowsky is about to say is groundless speculation, and the damage to my client would be further aggravated if it were repeated in the media.”

Thorpe, Gunderson, Minkins, Slip, and I followed Prescott through the door behind the bench. I got a better look at Minkins when he passed me. He could definitely be the guy from the library, but I still wasn’t positive.

Since Roger was there as Townsend’s attorney, he had to stay outside. All to the good, since he knew better than Thorpe how devious I could be. Jackson stayed put too. I’d long gotten used to the criminal justice systems practice of leaving the defendant at the counsel table, just in case he was beginning to think his presence was relevant.

Slip and I were at the back of the pack, and no one seemed to be paying attention to us. He scribbled something on the corner of his legal pad, ripped it off, and passed it to me as I walked through the door behind him. By then, Prescott was sitting at her desk, so I slipped the page into a folder. If the teacher caught us passing notes, we’d get the grown-up equivalent of detention, and whatever was on that piece of paper would be public information.

“Let’s hear it, Mr. Szlipkowsky.”

“Melvin Jackson is presumed innocent. So presume just for a moment, your honor, that someone other than Melvin Jackson killed Clarissa Easterbrook. If that’s true, as I believe it is, then let’s be honest that someone did a pretty good job setting up my client. My client was upset with the victim, he worked where the body was found, paint from his van was found on her dog, and then, of course, the weapon’s the icing on the cake. As I delved into the question of who might be in a position to accomplish such a setup, I kept coming back to the construction site in Glenville.”

Slip continued to spell out the coincidences for her. Jackson, his landscaping business a fly-by-night operation in the penny newspapers, suddenly gets a call from Minkins asking him to work on a multimillion-dollar project by Gunderson Development. Minkins sees him take paint from the property, and later that paint turns up on Clarissa’s dog. When Clarissa’s body is found at the property, it’s Gunderson Development that makes sure the police get Melvin’s name. And then it turns out that Jackson’s not the only person with business in front of Clarissa Easterbrook; a case in which Easterbrook ruled on behalf of Gunderson had her troubled enough that she kept a copy of the case file under lock and key.

Prescott raised her eyebrows, clearly surprised by the amount of detail in the proffer. The problem was that the proffer was enough to raise eyebrows, but Slip still didn’t have enough to tie everything together. It was, in Thorpe’s words, pure speculation. Prescott’s ruling could go either way. Convincing her to pull the trigger and put the witnesses in the chair would be a matter of strategy.

First, we had to sit through Thorpe’s diatribe. “To suggest that my clients had anything whatsoever to do with Ms. Easterbrook’s murder is outrageous. Mr. Szlipkowsky should be grateful that Mr. Gunderson hasn’t sued him for slander.” Thorpe handed the judge, Slip, and me copies of an affidavit signed by a Lee Block. I had to admit, I was impressed by the work Dunn Simon had done in the hours that had passed since the subpoenas were served. “As you can see,” Thorpe explained, “Mr. Gunderson was in Bend, Oregon, looking at a property all day on the Sunday when Ms. Easterbrook disappeared. Mr. Minkins was in the casino at Chinook Winds until four p.m. that day. We are working on locating a videotape to substantiate that, and I’m confident we will have it by the end of the day.”

The plan was working. Without even getting a ruling on the subpoenas, the attorney who refused to let me talk to Gunderson and Minkins informally had just locked them into alibis for the time of Clarissa’s death. Go figure.

Having set up the facts he wanted to rely on, Thorpe launched into his argument. He took the predictable route, borrowing many of the same points made by Bow Tie on Friday.

I opened the folder on my lap to sneak a glance at the note that Slip had passed me. The man’s handwriting was as sloppy as his attire, but I made it out: Disc = finances of OHSU pediatric wing.

I tried to pull my concentration back to Thorpe, who was using words like ludicrous, preposterous, and farcical. If Dunn Simon was charging by the word, he should have checked his thesaurus and added cockamamy and wacky while he was at it.

Why had Clarissa kept the financial records from Townsends hospital wing in her safe deposit box? Maybe they were his backup records and she was keeping them for him, but would she really tell him about a safe deposit box that contained a video of Caffrey and her at a motel? If she wasn’t holding them for Townsend, why was she holding them at all? It didn’t make any sense.

“Ms. Kincaid. Does your office have a position on this?”

“I’m sorry, your honor. On what?”

Slip looked at me like I’d lost my mind.

“Well, as I understand it,” the judge said, “Mr. Thorpe’s principal argument is that the defense’s argument is one big paranoid delusion and that, in any event, Mr. Szlipkowsky has failed to draw any kind of nexus between the folks at Gunderson and this supposed frame-up. Correct me if I’m misstating it, Mr. Thorpe, but he’s essentially arguing that the starting point for the alleged conspiracy would have to be knowledge of Mr. Jackson’s animus toward Ms. Easterbrook. And I haven’t heard the defense articulate any reason to believe that the Gunderson company would have that knowledge. It happened to have a case decided by her, but so do hundreds of other companies doing business in the city. Before I rule, I’d like to hear where you stand on the motion.”

Something about what she said was bothering me, but I needed to get the plan back on track. “Obviously, this is a matter for the court’s discretion, your honor, but it strikes me that the issue we’re looking at is different from the one your honor ruled on last Friday. The previous subpoena struck me as an attempt to introduce inflammatory information about possible activities in the victim’s personal life, without ever tying those activities concretely to the victims murder or to Mr. Szlipkowsky’s client.

“Here, in contrast, Mr. Szlipkowsky has provided specific information that appears to raise questions that I would be inclined to pursue at least in some form prior to trial. Let me be clear: I am still confident of our case against Mr. Jackson. But what I don’t want to see is a situation where we’ll be dealing with these same issues down the road at trial in front of a jury who might be misled or confused. Quite frankly, if the court were to grant Mr. Thorpe’s motion, my office might be inclined to serve grand jury subpoenas instead. In the event that possibility affects the court’s exercise of its discretion, I thought I should be forthright about my intentions.”

“Well, thank you, Ms. Kincaid, for your candor. It certainly wouldn’t make sense to have the witnesses leave, just to return tomorrow for a grand jury session.”

While I was getting brownie points for my honesty, Thorpe was working his way into the doghouse.

“That doesn’t make any sense at all, your honor. If you decide to quash these subpoenas, you should quash any subpoenas that Ms. Kincaid might order in the future.”

Prescott, Slip, and I just looked at him. In addition to being rude, Thorpe’s statement was simply wrong. Courts live with the fiction that grand juries are independent of the judicial and prosecutorial systems. Convincing a judge to quash a subpoena to appear in court was one thing; convincing her to mess with the grand jury was quite another.