Time of Departure (18 page)

As I entered, he was sitting behind his desk with his back to the door, staring out the window.

“I'm here.”

He swung his chair. His expression was thunderous. “Where were you?”

“Sorry. I had a bad night.” To avoid the next question, I kept talking. “I heard about the indictment. Nine counts! It's everything we wanted!”

He slid a sheaf of documents across his desk. “Tribe's attorney served a motion to suppress this morning.”

“What? It's only been three days!”

“He managed to get a copy of the search warrant file.”

“How?”

“Who knows? The Court Clerk's Office is a sieve. He'd get it on discovery anyway, but now we'll have to deal with it up front.”

I picked up the documents and spent a few seconds flipping pages, scanning passages of formulaic text. “Standard language here, Sam.”

He held out his hand. I passed the papers back.

“Paragraphs sixteen to twenty-one are not exactly ‘standard language.'” He started reading passages aloud. “‘… human remains found under cellar floor product of unwarranted prior search.… Defendant says the warrant judge was deliberately misled or erred in law … the conduct of the Assistant State Attorney and her agent was a flagrant violation of Defendant's rights,' et cetera, et cetera.” He looked up. “He's made you a witness, Claire. He plans to flay you on the stand.”

I wondered if the sudden strain I was feeling was etched on my face. “Will you take the hearing?” I asked, quietly hoping.

“Would you prefer Standish?”

“No!”

“Of course I'll take the hearing! And if we survive it, I guess I'll have to take the trial!”

“Sam, I want second chair.”

“I'm not sure we can pull that off—not with this judge.”

I had an awful premonition. “Who is it?” I asked.

“Barlow.”

*   *   *

The jury box was empty. Any decisions made at this hearing would be made by the judge alone. And from my position next to Sam, I could see the bastard was relishing the prospect.

Marc and I had made up.

Well … sort of.

With the hearing date breathing down our necks, I had called Marc and apologized.

Well … sort of.

I'd told him that when I said, “Stay away from me until the trial,” I actually meant, um, until the defense's suppression hearing.

“I know.”

“You know?
I
didn't know! How the hell could you—?” I sucked in a breath and swallowed my frustration. “Never mind … we really need to meet.”

“Come to the apartment.”

“No. At the office. Sam wants to interview you.”

“Figured.”

“What?”

“That he would take it.”

“He has to. The defense is forcing me to testify.”

“Make sure he puts me on first. I'll make the ride easier for you.” He sounded perfectly relaxed.

And that was exactly how he came across on the witness stand—cool and relaxed. Under Sam's careful questioning, Marc walked the court through every step in the process of reasoning that had led us to the cottage on the Suwannee, underlined the fact that he had acted independently and without notice to me when he entered the cabin, and wound up his direct examination by rattling off an executive summary of every shred of evidence already available to us at the moment of entry.

Well, almost every shred. He did manage to leave out the small matter of forty-one lever-arch binders stuffed with police reports that lined the shelves in his upstairs bedroom. And he diplomatically failed to mention the many hours he had spent sequestered in that room with a certain Assistant State Attorney named Claire Talbot.

But then again, he had failed to mention those little details to Sam Grayson as well.

After two hours, it was the defense's turn.

Harlan Tribe's attorney, Adrian Bannister, was fresh from a news-grabbing jury victory in Jacksonville. Goateed and ponytailed, with a baritone voice and a radioactive smile, he was as sleek as an otter in his tailored suit. The defendant, wearing a weedy sports jacket and open-necked shirt, sat in scrawny silence at his counsel's table, never once offering a single word of whispered instruction to his attorney. The only time he displayed any visible interest in the proceedings was when I was in the witness box. During that uncomfortable hour, Tribe never took his eyes off me, and he wore the confused look of a man who was struggling to remember something.

Bannister's bare-bones cross-examination of Marc and, later, of me, left the distinct impression of a lawyer more devoted to image and style than to meticulous preparation or legal acumen. In other words … a jury charmer. By the time the evidence phase was over, I was left with a lingering—and certainly startling—second impression. Tribe's attorney didn't really want his motion to succeed. He was hoping the case would go to trial. The jury charmer saw a chance to turn the decades-old murders of nine young women into a marketing opportunity.

Bannister and I were both about to see our neat little plans shot to hell.

The argument phase began after the lunch adjournment. Marc took a seat directly behind Sam to make it easier for us to maintain eye contact. The tension between us had evaporated during the course of the hearing. Three rows back, Geiger and Lipinski sat side by side, stone-faced and staring. Technically, they were the lead investigators, but their evidence about recovery of the bodies at the cottage had been covered by an agreed stipulation of facts.

Otherwise, the courtroom was empty. The nature of the hearing required that it be heard in camera, and a bailiff stood ready outside the main doors to ensure that no one entered.

At Judge Barlow's nod, Sam rose to commence his final argument. Steadily and precisely, he stitched the facts together. Then he turned to the law.

*   *   *

Ninety minutes later, Bannister was in full flow, rocking on his feet, his notable voice—another marketing asset he was happy to deploy for the ubiquitous microphones on courthouse steps—swelling with righteousness as he read passages aloud from prior reported cases that were only marginally relevant.

But Judge Barlow wasn't looking at Bannister.

He wasn't looking at Sam, either.

His pale eyes were fixed on me.

I could barely keep still. I turned my pen over and over in my fingers, at the same time hating myself for displaying such compulsiveness under this despised judge's gaze.

“And, in conclusion, Judge—”

At last Barlow's attention shifted to the defense table.

“That's the third time you've said that, Mr. Bannister.”

“My apologies, Your Honor. But never in my entire career have I encountered such a flagrant example of a defective warrant! Why, even my old friend, the distinguished law professor Morton—!”

“Forget your old friend!” Barlow interjected as his chalk eyes slid back to me.
“Miz Talbot,”
he stated—laying equally disdainful emphasis on both the “Ms.” and my surname—“repeatedly made it clear in her evidence that she fully disclosed the circumstances of the prior search to the issuing judge. Mr. Hastings's testimony supported her in this. Do you concede that the judge who issued the warrant was aware of the prior entry?”

“Yes, Your Honor, but—!”

“So, the warrant is prima facie sufficient on its face.”

“Yes, but—”

“But … you're pressing a more fundamental point, are you not, Mr. Bannister?”

“Here it comes…,” Sam muttered to me.

“Yes, Your Honor!” Bannister replied. “You mean, of course … You mean the point that … that…” He trailed off.

“Yes, Mr. Bannister?”

“The prior evidence was, uh, was probably … insufficient.”

Probably
insufficient? Bannister's apparent reluctance to drive the point home confirmed my earlier impression that he didn't give a damn about winning this closed-door hearing. He had his eye on the bigger prize—a national television audience.

I was rooting for him.

But the judge wasn't letting him off the hook. “Exactly,” Barlow resumed. “You are pressing the fundamental point that no search warrant could ever properly issue on the evidence available to
Miz Talbot
”—that emphasis again—“prior to the moment of entry
onto,
much less
into
your client's recreational premises.”

Bannister's back straightened. “My very point, Judge.” Victory was being forced upon him, and he decided to take it like a man. “If we ignore everything that was found during that initial search, the remaining evidence listed by Mr. Hastings does not reach the threshold of probable cause. Therefore, the search warrant must have been, uh … must have been…”

“Void ab initio, Mr. Bannister?”

Bannister flushed. “Er … yes, Your Honor. Void.”

Barlow nodded slowly. “Thank you, sir. You may be seated.”

Bannister hesitated, and then subsided into his chair.

Sam rose to his feet. “I'll say it again, Judge, and I ask you to pay close attention to this crucial point! No matter what your personal
hindsight
view might be on the grounds for the search warrant, the ‘inevitable discovery' rule applies. At this hearing, we have demonstrated on a preponderance of evidence that normal police investigatory procedures would have inevitably led to the discovery of this evidence. In those circumstances, this evidence is clearly admissible!”

Barlow's eyes locked on me as he responded to Sam. “This wasn't just a perimeter search, Mr. Grayson! Nor is there any doubt that Mr. Hastings was acting as your Assistant State Attorney's agent on this occasion, and that she and Hastings were both trespassers on that property! The inevitable discovery exception has sometimes been held to apply to derivative evidence, but never to primary evidence!”

“With respect … Judge O'Connor himself specifically stated that he would have issued a warrant in any event, just on the evidence already in Ms. Talbot's possession before the entry was made.”

“How do I know what he stated? He made no record of his reasons for issuing this warrant!” He leaned back in his chair. “That in itself I find extraordinary.”

“Ms. Talbot related to you under oath what Judge O'Connor said. She gave you his exact words.”

“Yes, she did.” Barlow's mouth twisted. “And very conveniently this alleged assurance by Judge O'Connor was given out of the hearing of your only other witness. Therefore, I have only the word of the Assistant State Attorney that
your
office permitted her to conduct a freelance investigation, assisted by an obsessed retired policeman who—also very conveniently—appeared on the scene within hours of the discovery of the two bodies at Bronson.”

Sam's expression darkened. “Judge, I find that comment—”

“Why the midnight visit to Judge O'Connor, Mr. Grayson? What dire emergency required
Miz Talbot
to get
that particular judge
out of bed during a week when another judicial officer—namely, me—was on call? What evidence was likely to be lost by waiting until morning?”

“Your Honor, decisions in both the Second and Eighth Circuits have held that the inevitable discovery exception applies to primary evidence where—!”

“I have read your memorandum, Mr. Grayson! Sit down!”

Sam remained on his feet. A second ticked by, then another. He looked like a man ready to risk a hearing before the state bar by firing back with a cutting reminder that the rules of courtroom civility applied to judges as well as attorneys.

Barlow sensed what was coming. “Permit me to restate that.
Please
sit down, Mr. Grayson.”

Barlow was nothing if not a coward.

Sam resumed his seat.

“My decision is as follows.…” Barlow proceeded to enunciate his ruling through his teeth without glancing at his notes. “I find as a fact that Marcus Hastings was an agent of the State. I find his conduct, and the concurrent conduct of Assistant State Attorney Talbot here present, to have been reprehensible in the extreme. I am astounded by the conduct of this woman, who is an officer of the court. I am equally astounded that this warrant was issued by my brother judge. Perhaps his normally acute faculties were affected by being awakened in the middle of the night. I don't know, and I don't need to know. Whatever the reason, there was no legal basis for Judge O'Connor to grant this search warrant. I rule that none of the physical evidence recovered from the defendant's recreational property may be tendered before the jury! My written ruling, with full references to the governing legal authorities, will be filed on the case record within seven days.” He banged his gavel, rose to his feet, barked “We are adjourned!” and strode out of the courtroom.

 

26

Sam finished a short discussion with Tribe's lawyer and stepped back to our table. Behind him, Bannister started packing his papers into a briefcase. He was speaking in low tones to his client, but the old man didn't seem to be listening.

Tribe was watching me, and he was still looking confused.

“He's moving for a fresh bail hearing,” Sam said.

“No surprise there,” I replied bitterly. I was feeling sick to my stomach.

“I told him we'd review our evidence and take a position.”

“The case is screwed, Sam. Bannister's got to know you're stalling.”

“I want to stall long enough to see Barlow's written ruling. His conduct was outrageous. He displayed personal animosity toward you, and—!”

“That won't show in the transcript, Sam! You know that.”

“Maybe not, but he gave the game away with that swipe about you going to another judge during
his
chambers week.”