The Last Alibi (38 page)

98.

Jason

Roger Ogren didn’t get a lot of sleep, but he appears eager nonetheless as he looks me over before he begins his cross-examination. Maybe it’s the packed room. The trial has typically been well attended, but now it’s standing room only, people lining the walls, talk of a second room being set up to accommodate the overflow. My mention of Marshall Rivers yesterday has turned the media into a pack of howling canines—with all necessary apologies to howling canines.

“Good morning, Mr. Kolarich.”

“Mr. Ogren.”

“Very exciting testimony yesterday,” he says. “The North Side Slasher.” He makes a
wow
gesture with his hands, a look of wonderment. He pulls it off better than I might have expected. Roger’s kind of a fuddy-duddy, but he’s pissed off, and the electricity animates him. It doesn’t bode well for me that he’s got some game today.

“So let’s just be clear up front. You can’t say for a fact that Marshall Rivers killed Alexa Himmel, can you?”

“For a fact? No. I wasn’t there when it happened.”

“You can’t place Marshall Rivers at the scene of the murder, at the time of the murder, can you, Mr. Kolarich?”

“I can’t say one way or another where he was, no.”

“The murders attributed to Marshall Rivers on the north side this summer—those were stabbings, were they not? Multiple stab wounds on each victim?”

“That’s my understanding, yes.”

“Alexa Himmel wasn’t stabbed, was she?”

“No.”

“She was shot just below the neck.”

“That’s correct.”

“You can’t even prove that Marshall Rivers ever set foot in your law office, can you?”

“Prove it? I’m saying it was him.”

“You’re saying it was him . . . based on seeing his picture in a newspaper?”

“That’s right.”

“Marshall Rivers didn’t have red hair, did he?”

“No.”

“Marshall Rivers did not have a large, protruding stomach, did he?”

“I am not sure I know that answer, Mr. Ogren. Most of the newspaper photos were head shots.”

“So you don’t know if Marshall Rivers’s midsection was . . . fat, pudgy, what have you. You don’t know.”

“Correct, I don’t know. But Marshall Rivers was very muscular in the chest and shoulders, just like the man who came to my office. That’s the part you can’t fake, Mr. Ogren. You can put on a wig. You can give yourself a fake belly. But muscles in the chest and shoulders? You can’t fake that.”

Ogren pauses a beat, frowns. He could object to my unsolicited statement, but he’s going to have to deal with it sooner or later, so he lets it slide.

“You’re describing for us the build of Marshall Rivers’s chest and shoulders, as you observed them from a
head shot
. In a
newspaper photo
.”

“Best I could do, Mr. Ogren. They weren’t all head shots. Some were wider angles. And I also interrogated him, remember. I took his confession. He was very stocky then.”

“
Then
being over eight years ago, true?”

“True. Yes.”

“And the build of his upper body, you say, resembled that of the man who came to your office.”

“Correct.”

“And this man who came to your office—you haven’t shown the jury any photographs of this person, have you?”

“Photographs? I’m a criminal defense lawyer, Mr. Ogren. People come to me to share their secrets. Most clients wouldn’t take too kindly to my snapping a photo of them when they walk in the door.”

Ogren’s eyes narrow at my jab. A couple of the jurors find it slightly amusing, but this isn’t the time to be glib. I need to watch myself.

“So when you say that Marshall Rivers’s build resembled that of the man who came to your office—we only have your word for that.”

“I guess that’s true, yes.”

I could give them Marie, who spent some time with my redheaded client and who could describe him as well as I could. But I’m not making Marie take the stand. I don’t need to.

“Okay. Let’s talk about your police interview.” Ogren reviews his notes on the podium. He uses them for guideposts, nothing more. “You admit that you lied to Detective Cromartie in the police interview several times?”

“I did lie, yes.”

“You lied about the status of your relationship with Ms. Himmel.”

“Yes. As I said, I was trying to be—”

“Respectful of her,” Ogren finishes. “Yes. Having been a prosecutor for eight or nine years, you understood the importance of getting accurate and complete information from witnesses, didn’t you?”

“Yes, of course.”

“Witnesses who think they can decide for themselves what information is important and what information is not—they can really hinder an investigation, can’t they?”

“Yes, that’s true.”

“And you knew that back on July thirty-first, when you were giving your interview.”

“Yes, I knew that.”

“But you repeatedly lied, anyway.”

“I lied about my relationship with Alexa, yes.”

“When you were being interviewed by the police, you didn’t say anything about a serial killer, did you?”

“What could I say, Mr. Ogren? First of all, I didn’t know for a fact he
was
a serial killer. And second, even if I did, I didn’t know his name. I knew his fake name, but how was
that
going to help?”

“So instead, you gave
half
a fake name. You gave the name Jim, but no last name.”

“That’s right. I sort of caught myself mid-sentence and just left it at ‘Jim.’”

That, of course, was not an accident.

“Nothing was stopping you from saying ‘James Drinker’ or ‘Jim Drinker,’ was there, Mr. Kolarich?”

“Stopping me? I wasn’t totally sure whether I could even give out his first name, given the privilege.”

“I see. That attorney-client privilege, that worked out pretty well for you, didn’t it, Mr. Kolarich? You could drop a name, or half a name, and then hide behind it, isn’t that right?”

“Objection, argumentative,” says Bradley John.

“That’s okay, I’ll answer that,” I say. “I’m willing to answer that, Judge.”

“Your Honor, I’ll withdraw my objection,” Bradley says. “I apologize.”

The judge isn’t too thrilled with this whole exchange, but waves me on.

“There’s nothing convenient for me about this attorney-client privilege. If it weren’t for that privilege, Mr. Ogren, I would have called the police the first time I met with this man who identified himself as James Drinker. I didn’t have direct, concrete proof that he was a killer, but I certainly had my suspicions. And I would have been more than happy to tell Detective Cromartie all about him. But at the time of that police interview, I didn’t know the name Marshall Rivers. All I knew at that time was this guy came to my office twice, gave the name James Drinker, and it was a fake name. That’s
all
I knew. I didn’t know his true identity.”

I glance at Shauna, whose eyes break from mine. She suspects I’m lying, but doesn’t know for certain. She doesn’t know what happened when I went over to Alexa’s house that evening after the 8:16
P.M.
phone call to my house. She doesn’t know that I heard Joel Lightner telling me, via voice mail, that Marshall Rivers was the north side killer.

She doesn’t know what happened afterward, either.

“Then let’s talk about Alexa Himmel,” Ogren says, moving away from a bad moment. He goes to the prosecution exhibit showing Alexa’s letter to the Board of Attorney Discipline. “You testified that you went to see Ms. Himmel, and she told you that she wasn’t really going to send that letter.”

“That’s right. She was trying to get my attention. But she wasn’t going to send it.”

“Were you
alone
when you went to see Ms. Himmel?”

“Yes, I was alone.”

“Can anyone verify that you went to see her?”

Shauna can.

“Not that I know of,” I say.

“No one else was there, besides you and Ms. Himmel?”

“No.”

“Other than your word, do we have any proof at all that this conversation even happened?”

“Other than my word? No.”

“But we
do
have independent proof that Alexa Himmel was saying things to you like . . . oh, let’s see.” Ogren finds one of the e-mails and puts it up on the screen. “That ‘your going to be seriously fucked.’ We have proof she said
that
to you, in an e-mail, don’t we?”

“Yes, we do.”

“And that she called you a ‘coward’ and said you ‘lied to her’ and you left her to die. We have proof she said
that
to you, don’t we?”

“We do.”

“And we have proof that she had gone to the trouble of preparing an entire letter to the disciplinary board that oversees lawyers, accusing you of misconduct. We have proof she did
that
, don’t we?”

“We do.”

“But this one conversation where, apparently, Alexa Himmel said to you, ‘Don’t worry, Jason, I’d never hurt you,’ that conversation, we only have your word.”

“You only have my word, yes.”

“And we have proof—in fact, you’ve admitted—that in the past, when it comes to Ms. Himmel, you’ve been willing to lie.”

“I did lie at the police interview, yes.”

He’s doing a pretty good job of kicking me in the balls here.

“The night of the murder, Mr. Kolarich. Can anyone verify that you were at the beach from mid-afternoon until sometime after sundown?”

“Not that I know of.”

“Can anyone verify that you went for a three- or four-hour drive around town afterward?”

“No. Just me.”

“You didn’t make a single phone call on your cell phone during that entire interval of time, did you?”

“I don’t remember making any. I’m not entirely sure from my own memory, but the CDRs you pulled of my cell phone for that night say I didn’t, and I have no reason to quarrel with that.”

“You didn’t stop for gas.”

“No.”

“You didn’t even eat food, did you?”

“I—no, I don’t think—well, I brought some granola bars with me. I remember I ate granola bars on the beach. There wasn’t much food I could hold down when I was going through withdrawal. But those granola bars I could eat.”

“What kind of granola bars, by the way?”

“Oh, they come in a green box. They’re hard, not soft. Oats and honey flavor, I think it is.”

“What brand?”

“I don’t know the name of the brand. Green box.”

“The call to your home phone at 8:16
P.M.
on Tuesday, July thirtieth,” he says, jumping quickly, having taken a shot with the granola thing, trying to catch me in a lie but not scoring. “You say it was a voice mail.”

“Correct.”

“You listened to it after you called 911, you said.”

“Right.”

“You never mentioned it to Detective Cromartie, did you?”

“The voice mail? No, I’m sure I didn’t.”

“Or to the patrol officer who first responded.”

“I’m sure I didn’t.”

“So we have to take your word for
that
, too. The fact that there was a voice mail.”

“You do.”

Ogren flips around his notes. He’s probably close to done. He should be, anyway. Quit while you’re ahead. And he’s definitely ahead.

“One final topic,” says Ogren. “The matter of Alexa Himmel’s supposed house key.”

“It’s not a
supposed
house key. I gave her a key to my house.”

“When did that happen, Mr. Kolarich?”

My eyes drift to the ceiling. “Oh, the beginning of July. About the time she moved in with me.”

“Where did you get it made?”

“Witley’s Hardware down the way from my house, about three blocks.”

“Did you pay for it with a credit or debit card?”

“A credit card? It was, like, four or five dollars. No, I believe I paid in cash.”

“You’ve never paid for something that was four or five dollars with a debit card? You’ve never swiped your debit card at a McDonald’s or a Walgreens?”

Knowing Ogren, he’s memorized my credit card bills and will point to examples where I did that very thing. So I have to tread lightly. “I imagine I have, yes,” I say.

“But not for
this
purchase. For
this
purchase, it was cash.”

“That’s right. But I did buy it. She did have a house key.”

“But you have no corroboration for that.”

“I don’t.”

“And you can’t tell us what happened to this . . . this key.”

“No.”

“Nor can you explain to us how Alexa Himmel got into your house before you were home, if she didn’t have a house key.”

“But she
did
have a house key, Mr. Ogren, and that’s how she got in. I just don’t know what happened to it.”

“But we’re taking your word, and your word alone, for that, as well.”

I sigh. “I guess you are, Mr. Ogren.”

Roger has done a valiant job of showing that every piece of our defense, thus far, has been built on my testimony and mine alone.
The word of an admitted liar! A man who would say anything to stay out of prison! Do not believe that man!

“Your Honor, we reserve the right for further questioning during rebuttal,” Ogren says. “But for the time being, I have nothing further.” He only had last night to prepare for this cross-examination, after I threw out all sorts of things yesterday I’d never said publicly. He did well, very well with the time he had. But he’s not done with me by a long shot. The prosecution gets a rebuttal case, and he surely has already mobilized his considerable resources to proving that the things I’ve said on the witness stand are lies.

Many of them are, of course. Some of them are not. We’ll see what his cops can come up with over the next few days.

99.

Shauna

“Let’s take ten minutes,” says the judge after Roger Ogren completes his cross-examination of Jason.

I nod to Jason’s brother, Pete, give him one of those grim half smiles, and then walk straight to the anteroom. Jason goes to talk to Pete for a minute, so it’s just Bradley and me inside the room.

“Redirect,” Bradley says. “I was thinking—”

“I wouldn’t do redirect, personally,” I say. “We got our points out, he got his out. He did a nice job.”

“It was okay.”

“No, it was better than okay. It was very good. He shaved down our entire case to resting on the credibility of Jason’s testimony. That’s not a good place for us.”

“Then let me do some redirect.”

I shake my head. “Bradley, nothing that Jason can say will change the fact that it’s Jason saying it. The guy standing trial for his life. The guy they’ve already seen lie repeatedly to a police detective in that interview. They have to take his word for everything he says, because there’s no corroboration. No one saw him on the beach or driving around the night of the murder. No one heard his conversation with Alexa where she assured him she wouldn’t send that letter.”

I shake my head again, for no apparent reason other than it seems appropriate.

“So . . . what? What now?” Bradley asks. “We call Detective Austin, the lead on the north side murders, and pump him for information?”

I shrug. “Not much else we can do.”

“We’re fishing, in other words,” he says.

“Totally.”

“Because what Roger Ogren said in there was right, Shauna,” Bradley goes on. “Marshall Rivers was the North Side Slasher, not the North Side
Shooter
. If Rivers killed Alexa, then he switched MOs from butchering women to shooting them in the head.”

And here I didn’t think I could feel any worse. I know all of this, of course, but hearing it in such a tidy, withering summary, from my own cocounsel no less, lights a tiny bomb in my stomach.

“That’s going to be a pretty hard thing to sell to the jury,” says Bradley. “Don’t you think?”

“Maybe so,” I say.

Or maybe not. I know more than Bradley about what happened that night, but far, far less than Jason. To varying degrees, our client has kept us both in the dark.

We’re all going to find out together.