The Heavens May Fall (32 page)

Kotem then followed Kagen to a breakfast restaurant where he watched Kagen eat a meal of pancakes and eggs. Kagen used a plastic fork that he brought with him and drank milk through a straw. When the meal was over, he put his fork, straw, and a napkin that he used to wipe his mouth into his jacket pocket and left.

Why would a man carry around a dirty fork and straw except to keep his DNA from being collected? And why would Kagen be so protective of his DNA if he had nothing to hide? But, odd as it may have been, Kagen’s behavior proved nothing, and by the day of the retrial, Boady had no DNA sample from Kagen.

The first major snowfall of the season followed Boady to the courthouse that morning, and by noon, the city wore a fresh six inches of the stuff. Boady decided to eat with Lila in the cafeteria that day instead of eating his sandwich outside like he preferred. They went through the line and claimed a table in the back of the room.

As Boady finished the first half of his sandwich, he stopped mid-bite and nodded toward the center of the cafeteria. Everett Kagen had taken a seat at a small table, where he reached into his pocket, retrieved a plastic fork, and began eating his salad. He sipped water through a straw and had a paper napkin on his lap.

“Do you think he killed her?” he asked Lila.

Lila looked over her shoulder to see whom Boady was eyeing. “Kagen?” she paused to give the question more consideration than Boady thought it needed. “I think he was having an affair with Jennavieve. And if that’s the case, he certainly perjured himself at the first trial.”

“But do you think he killed her?”

“I still have my money on Anna Adler-King. There’s something cold about that woman.”

“No,” Boady said with a quiet conviction. “I thought it was Anna too, but not anymore. I don’t know exactly why he did it. Maybe Jennavieve threatened to end the relationship, or tell his wife. I’ve seen people do unbelievable things in the heat of passion. I think Jennavieve sent Emma to spend the night with her friend so that she and Kagen could have the house to themselves. I think they had sex, and after they were done, they got into an argument. Jennavieve went to shower off, and Kagen got the knife and met her as she came out of the bathroom.”

“So how do we prove it?” Lila asked.

Boady shrugged. “We don’t. I brought a motion to Judge Ransom, hoping to get a search warrant for Kagen’s DNA. He denied it. I didn’t think it would fly, but I at least had to ask.”

“Why won’t he sign a warrant? Kagen’s DNA might match the semen in the condom. That would be the whole case right there. It proves he was there that night. It would prove he was having an affair with Jennavieve. If nothing else, it’s a lock for reasonable doubt.”

“‘Might,’” Boady repeated Lila’s word back to her. “‘It
might
match the semen. That’s the problem. Judge Ransom won’t sign a search warrant on what
might
be found. It has to be probable. We need proof that Kagen’s DNA is likely to be found in that condom. But we have no proof of the affair. Kagen denied it, and his wife puts him at home before Malena Gwin saw the red sedan pull up to Jennavieve’s house. I don’t know how he did it, but I believe in my gut that Kagen killed Jennavieve Pruitt. Unfortunately, gut instinct is a long way from probable cause. And without that—no search warrant.”

Kagen had his back to them, but Boady could tell that Kagen took care that he ingested every morsel of food that touched his lips. He would be leaving no spit on his plate. Then, mid-bite, Kagen paused, grabbed the napkin from his thigh and sneezed into it. He paused and sneezed again. He wadded the napkin into a ball and placed it on the edge of his small table.

Lila looked at Boady. “Wait here,” she said.

She stood, removed her suit jacket, laid it across her chair, and headed toward Kagen’s table. She passed his table, turned, and walked up to him so that she was squarely in front of him. She leaned onto his table, one hand on either side, her blouse falling open just enough to expose the edge of her bra.

Boady watched as she spoke to Kagen, but he could not make out what she said. She then pointed at Boady. Kagen turned in his seat to look and then turned back to Lila. Lila frowned, shrugged, and then walked back to Boady’s table.

“What was that?” Boady asked.

“I just told him that I worked for you, and I wanted to ask him a single question before we called him to the stand to testify.”

“Question? What question?”

“I never got to ask. He told me to ‘fuck off.’ He really is a bit of an ass.”

“So why—”

Lila held up her fist and let her fingers open up to show the snot-filled napkin that she had palmed.

“Good Lord. Let’s go.”

Lila went to the restroom to wash her hands while Boady scooted through the crowded cafeteria to the front counter. There he asked for and received a plastic bag from the kitchen. He thought about asking for a paper bag, the preferred method of preserving DNA evidence, but that wouldn’t work for what Boady had in mind. When the time came, Boady would need Kagen to see what the bag held. He would need Kagen to know that the game had changed.

Lila caught up to Boady as he was leaving the cafeteria. When they got to the hall, they paused to look back. Kagen was just putting his fork and straw back into his jacket pocket. He then reached for his thigh—paused, stood up—then bent over to search under the table.

A look of confusion capped his face and he stopped moving. Boady could see him mentally walking through his meal, trying to find the lost napkin. When Kagen finally turned to look at the empty table where he and Lila had been sitting, Boady smiled.

Chapter 54

After lunch, Boady had to suppress a grin as he said, “Your Honor, the defense calls Everett Kagen to the stand.”

A bailiff stepped out of the back door and reentered with Everett Kagen behind him. Kagen looked at Boady with questioning eyes, probably still not sure what to think about the missing napkin. He walked on shaky legs up to the witness stand and raised his hand as he swore to tell the truth. After Judge Ransom had him recite his name for the record, Kagen turned his attention to Boady.

Boady slid his hand into his jacket pocket and slowly pulled out the plastic bag with the cafeteria napkin in it. He straightened out the folded plastic, taking his time to let Kagen see what he held. Boady looked at the bag and then at Kagen—and winked. He laid the bag on his table.

Kagen never took his eyes off of the napkin.

“Mr. Kagen, were you having a sexual affair with Jennavieve Pruitt?”

Judge Ransom and Dovey both shot a look at Boady. But Kagen continued to stare at the napkin.

Boady waited, one tick . . . two ticks . . . three ticks. “Mr. Kagen? Were you having an affair with Jennavieve Pruitt?” Boady repeated with an edge of insistence.

Four ticks . . . Five ticks . . . six.

“Mr. Kagen?” Judge Ransom asked.

“I . . .” Kagen parted his lips to speak, but nothing came out. He passed a dry tongue across them and tried again. “I . . . I wish to invoke my right to remain silent.”

On the inside, Boady was leaping and punching the ceiling. On the outside he looked bored, no more excited than a man reading a car manual. Out of the corner of his eye, he could see that Dovey was stunned by Kagen’s response. Boady took advantage of Dovey’s confusion.

“Not only were you having an affair with her, but you were at her house the day she died.”

“I decline to answer that question—”

Finally, Dovey woke up and jumped to his feet. “Objection!”

“Mr. Sanden,” Ransom interjected. “No more questions.”

“Your Honor,” Dovey said, “I strenuously object. It is completely improper to call a witness just to get him to plead the Fifth.”

“Now wait a second,” Boady responded with a rising voice. “I had no idea—”

“Gentlemen!” Judge Ransom sent his voice booming through the courtroom. “You will both sit down.” He turned to Kagen. “Mr. Kagen, you are an attorney, so I assume you know what you are doing. You are not required to testify if there is a legitimate concern that your testimony could incriminate you.”

“Thank you, Your Honor,” Kagen whispered.

“Your Honor,” Boady said. His next words would be a gamble, but if it paid off, it would be huge. “The State has the ability to grant Mr. Kagen immunity. That would permit him to testify.”

Judge Ransom rubbed his chin as he considered Boady’s gambit. Ransom was a smart man. He had to see it. It would be professional suicide to grant immunity to a murderer. If Dovey refused to grant immunity, it showed that even Dovey believed that Kagen may have killed Jennavieve Pruitt. If Dovey had faith in his case, he would grant immunity with the belief that Kagen’s crime was merely perjury.

Ransom turned to Dovey. “Mr. Dovey?”

Dovey stared at Kagen, probably trying to glean some assurance from the man’s expression. But Kagen didn’t twitch. He stared at the floor in front of the witness stand, looking stunned.

“Your Honor,” Dovey said. “The State will not be granting Mr. Kagen immunity for his testimony.”

And there you have it
, Boady thought to himself,
proof
that
even the prosecutor has reasonable doubt
.

“You are excused as a witness,” the judge said.

Kagen nodded. He held the rail for support as he stood.

Ben leaned in, hugged Boady, and whispered, “I think you just saved my life.”

Chapter 55

Ben Pruitt took the stand wearing the same gray suit he wore on the first day of his jury trial, although it hung more loosely on his thin frame now than it did then.

Boady jumped right into the heart of the matter. “You were Jennavieve Pruitt’s husband?”

“Yes.”

“Where were you on the night she was murdered?”

“I was sleeping in a bed in room 414 at the downtown Marriott in Chicago, Illinois.”

“Did you drive back to Minneapolis that night?”

“No. I did not.”

“Did you kill your wife?”

“I loved my wife. No. I did not kill her.”

“Did you have anything to do with her death?”

“I wasn’t there to protect her. If I had been there . . . if I hadn’t gone to Chicago, I believe she would still be alive. But I had nothing to do with her death.”

“No further questions.”

“Mr. Dovey,” Judge Ransom said. “Your witness.”

Dovey cleared his throat. “Mr. Pruitt, do you believe that your wife was having an affair?”

“I wouldn’t have believed it before this trial. Even now, I have trouble believing it. I thought we were happy . . . well, ‘happy’ might be a strong word. I thought we were fine. We had our daughter, Emma, and our careers, and everything was fine. At least that’s what I thought. I loved Jennavieve. She was the most amazing woman I’d ever met.”

“So you had no idea that she was sleeping with another man? I find that hard to believe.”

“Objection,” Boady said. “Argumentative.”

“Sustained.”

“Mr. Pruitt,” Dovey continued. “You stand to inherit a small fortune with the death of your wife.”

“I’ve lost so much more,” Ben said. “If you count your wealth in dollars, you are a sorry person indeed, Mr. Dovey. I lost my best friend. I lost the mother of my child. Even if Jennavieve was seeing another man, we were a family. Things would have worked out.”

“She was planning to divorce you, Mr. Pruitt. How were things going to—”

“Objection.” Boady stood up. “Your Honor, the only testimony that Mrs. Pruitt had any idea of getting divorced came from the testimony of Everett Kagen. He has now pled the Fifth. Because of that I move that his entire testimony, at this trial and at the last, be stricken.”

Ransom rubbed a thumb across his chin. “Mr. Dovey, he’s got a point. Mr. Kagen can’t pick and choose what testimony remains in the record. If he invokes his right to remain silent, his entire testimony needs to be stricken.”

“But, Your Honor, we have a stipulation. The parties agreed—”

“Mr. Dovey,” Ransom interrupted. “This is not open for argument. Mr. Kagen’s testimony will not be considered by this Court. Move on.”

“Yes, Your Honor,” Dovey said.

“Mr. Pruitt, you received a sanction from the Board of Professional Responsibility for committing fraud on a court of law. Do you agree that’s true?”

“I agree that the sanction exists. I do not agree that I committed fraud on the court. I had an investigator assisting me on a case. That man presented me with a document that appeared to be a reprimand handed down to the detective in that case—Detective Max Rupert. I admit that I should have looked at it more closely, but at the time, I believed the document to be authentic.”

“But that wasn’t the finding of the board.”

“No, that wasn’t. I’ve accepted their decision, even though I know it to be wrong. I’ve moved forward with my practice and my life. I refuse to let that single incident define me. Other than that one blemish, I have lived a spotless life, and no one can change that—not even you, Mr. Dovey. Because the truth is—I didn’t kill my wife. The truth, Mr. Dovey, will ultimately prevail.”

Boady tried not to smile as Ben hit it out of the park.

Dovey flipped through a legal pad looking for a place to pick up his questioning. He paged forward and back, pausing occasionally to consider. Boady thought he knew the source of Dovey’s hesitation. Ben Pruitt was no ordinary witness. He’d spent years in trial. He’d learned cross-examination techniques from the same experts as Dovey. Ben knew how to spot traps—the same traps that he’d built during his career. Ben’s answers had all cleared the fence. Dovey would only do more damage to his case by continuing. Finally Dovey tossed his legal pad onto the table in front of him and shook his head. “No further questions.”

Chapter 56

The Court took a break to let the attorneys prepare their summations. Boady retreated with Ben and Lila to the holding cell, a secured room just outside of the courtroom. As Boady organized his thoughts, he listened to Ben and Lila—small talk at first, but then Lila brought up the events from the cafeteria that led to Kagen pleading the Fifth.