Double Tap

CHAPTER SIXTEEN

This morning Harry and I dodge a projectile the size of a cannonball. Judge Samuel Gilcrest is up on the bench, peering down at the five lawyers assembled at the other counsel table. In flowing black robes, his narrow, crooked nose and hairless dome shining under the beams from the courtroom’s overhead canister lights, Gilcrest resembles a wingless bald eagle about to hop down from its perch to eat its prey.

Gilcrest has decided that there will be no cameras in the courtroom for Ruiz’s trial.

Harry is leaning back in the chair next to me at the defense table, taking a deep breath, psychically hyperventilating.

Templeton has given up the prosecution table temporarily to the legal brain trust for the media, lawyers representing three of the national television cable franchises. They may be arguing lofty First Amendment issues, but the bottom line is dollars. The trial of Emiliano Ruiz-the man accused of killing Madelyn Chapman in what is now being called the “Double Tap” Murder-is worth tens of millions in ad revenue if they can get it on live TV. What is driving the story in terms of news value is not only the lurid details that have slipped out-the fact that Chapman was part of the international superwealthy and is believed to have been having an affair with the defendant-but the fact that her company was up to its eyebrows in IFS and the seething controversy in Congress over government intrusion and individual privacy.

They try to haggle with the judge.

“You’ve heard my ruling. The answer is no.” Gilcrest’s tone climbs a couple of decibels in volume, not quite angry but getting there.

The only thing that didn’t come up during more than an hour of pitched argument is the eight-ton elephant, the psychic presence of Larry Templeton. The cute little man has his feet propped up on top of his briefcase, which he has set on the floor in front of his chair to use like a footstool. Templeton has the fingers of both hands laced together and braced behind his head, his elbows spread as he leans back, enjoying the argument. His head is a full four inches below the top of the chair’s backrest. It is just this kind of lovable, take-me-home-and-squeeze-me image in front of the jury that has Harry and me worried.

Gilcrest is in his mid-sixties. With narrow, slumping shoulders, his slender six-foot-four-inch frame drips folds of black polyester as his robe fans out from his skinny neck and disappears behind the top of the bench. Everything about the man is sharp, from the angle of his nose to the high, prominent cheekbones set like boulders under eyes that are sunk so deep in the man’s skull that any color from the pupils is lost in shadow.

“Mr. Templeton, if you could join us, take your seat so we can move on to the other items.” The judge motions with a hand and a nod toward his bailiff, sign language to clear the courtroom now that the issue of cameras is behind us. Next up are motions on pretrial evidentiary items. These are closed to the public, though ultimate rulings and their significance are sure to seep onto the front pages of the newspapers and the minute-by-minute cable TV accounts of the trial.

Noise and commotion as foot traffic heads for the exit. The mob is out of their seats, milling toward the double doors at the back of the courtroom.

At the other counsel table the lawyers juggle loose papers and grab their briefcases, one of them holding a pen in his teeth, his half-open briefcase in one hand and papers in the other. Templeton lifts his feet off his briefcase and up onto the seat to avoid getting trampled. He arches his eyebrows and smiles at me, a portrait in miniature: Escaping the Exiting Horde. Harry is right. Templeton is going to kill us in front of the jury.

“Next item is the videotape?” says Gilcrest.

“I believe so, Your Honor.” Harry fingers through the folder to find our notes.

Templeton lugs his briefcase forward. Lifting it shoulder high, he pushes it up onto the table. He is joined by Mike Argust, one of the lead detectives in Homicide and the man who headed up the investigation of Chapman’s murder. He will be state’s representative for “the People,” entitled to sit in the courtroom and listen to all the testimony even though he is a witness and will be called to the stand. Argust’s name had been conspicuous in the papers before the court issued its gag order silencing both sides on the case. The detective’s face and image are still highly visible in file footage whenever Chapman’s murder pops up on the televised news.

“Your Honor, if we could have some help with the seat assist.”

Gilcrest is reading, trying to get a head start on the next motion. He looks up abstractedly from the file, as if encountering a man from Mars. “What? Oh, yeah, of course. Jerry!”

He calls to his bailiff, who is just locking up the back doors. Jerry turns toward the bench.

“Chair,” says Gilcrest. The judge, who has resumed reading the file, gestures absently with his hand toward Templeton. More sign language. This is understood in all the criminal courts where Templeton does business.

“Oh, yeah. Sorry.” The bailiff hooks his keys onto his belt and hustles back toward the judge’s chambers. A couple of seconds later he emerges carrying a dark square object like a box with rounded corners.

The county has designed a special fixture for the cushioned tilting armchairs used by the lawyers at counsel table. This device, made of wood, padded, and covered with dark fabric, fits inside the arms of the chair and lifts Templeton to a height so that he is seated on a level playing field with everyone else. The bailiff installs the thing and Templeton scrambles up into the chair like a truck driver climbing into the cab of an eighteen-wheeler.

“On this issue I don’t know that I’m gonna take a lot of time,” says Gilcrest. “I have looked at the tape and, except for a case I once heard involving prurient interest and socially redeeming values in the realm of porn, I have to admit it is pretty graphic.” The judge is talking about the videotape from the camera in Chapman’s office that caught her and Ruiz in half dress, going at it on the couch. “Of course, I can’t verify that they consummated the act,” says Gilcrest, “but a jury can come to its own conclusion, I suppose.”

“That’s the point, Your Honor.” I’m on my feet, the only advantage I have over Templeton, at least in front of the judge. “The tape proves only that they engaged in a single indiscreet act,” I say.

“I’m inclined to lean toward Mr. Madriani’s argument,” says the judge.

“Surprise me, Your Honor.” Templeton is smiling up at him from the other table, still pulling papers from his briefcase, not missing a beat. “The video speaks for itself. It is the best evidence of the relationship between the defendant and the victim. The state believes that that relationship was at the heart of this crime: that it is the reason the defendant killed the victim. The tape is vital. And it is corroborative of other evidence pointing to this relationship.”

I turn it around on him: “If they have other evidence, why do they need the tape, Your Honor? The contents of that tape are highly prejudicial.”

“I agree,” says Templeton. “It shows that he had a reason to kill her. He was in love and she’d cut him off.”

“It shows nothing of the kind, Your Honor.”

“One at a time,” says Gilcrest. “Mr. Madriani, since it’s your motion to suppress, you first.”

I cite provisions of the state’s evidence code that give the court discretion, allowing the judge to keep items in evidence out of the hands of the jury in situations where they could poison their view of the defendant to such an extent that he could not get a fair trial. “Prejudicial effect versus probative value,” I say. “What is the state trying to prove? That two people had an affair that lasted over a period of time, and that it became so intense that the defendant became infatuated with the victim to the degree that when she told him to go away he killed her. That’s their case.”

“That and the murder weapon and some awfully good shooting,” says Templeton.

The judge swats him down. “Enough, Mr. Templeton. You’ll get your chance.” Templeton bows his head toward the bench in acquiescence and straightens his bow tie.

“But does the content of that videotape prove the existence of such a long-term and torrid relationship? No. It establishes one incident of what can only be called a moment of lust. Not a motive for murder. And the images on the screen are so likely to offend a jury as to make it impossible for the defendant to redeem himself or have any chance of a fair trial. Your Honor, to show that tape to the jury is to poison their minds so irreversibly against the defendant that the contents of the videotape must be excluded.”

Gilcrest absorbs this without any hint as to whether it sways him. “Mr. Templeton. Now.”

Templeton somehow gets the heels of his shoes on the front part of the seat of the chair so that an instant later he is standing on the seat, the wrinkled knees of his suit pants an inch or so above the level of the table. The image is a gripper.

It is a first for me, never having tried a case against him. My jaw drops. When I turn back toward the bench, it’s apparent from the judge’s expression that he has caught the astonished look on my face.

“My learned opponent says that the tape fails to establish a long-term and torrid relationship,” says Templeton. “What does he expect, a four-night miniseries? That tape proves that they had an affair. It is one piece in a sequence of evidence that establishes the duration and the intensity of a relationship between the defendant and the victim that is at the heart of the victim’s death. Without that tape, the state’s case would be immeasurably weakened,” says Templeton. “And that relationship is central to our theory of the crime. Take it away and you may as well”-he pauses for effect-“cut off my legs.”

Still standing at the table, I glance sideways down at Harry, who is seated next to me. Harry’s face is an expression of I told you so.

“That’s all fine and good,” says Gilcrest, “but I’m still concerned about the tape. How do we get the jury to disregard all of that huffing and puffing, to say nothing of the sweaty bodies on the screen? Especially since only one of those bodies is going to be present during the trial?”

Gilcrest is the best kind of former defense lawyer, the kind that wears black robes.

“It goes with the turf,” says Templeton. “It is what it is. What’s on the tape is what they did.”

“But what’s on the tape isn’t an act of murder,” says Gilcrest. “Not unless he humped her to death.”

“Of course not, and we’re not saying that it is, Your Honor.” Templeton laughs. “But it’s an incremental part of our case. Vital evidence,” he says.

“It’s also highly prejudicial-”

Gilcrest puts up a hand and stops me as if to say he’s heard enough from my side of the argument. “So it comes down to whether there is anything that the state might be able to substitute for the contents of that tape. Is that where we are?” asks the judge.

“Your Honor, there’s nothing that can substitute for that tape,” says Templeton.

“If my goal was to poison the jury, I’d agree with you,” says Gilcrest. “As I recall, there was a young woman who entered during part of the tape. Though my eyes were riveted-as yours were, I’m sure-on the action, I believe she was a redhead.”

I supply the name. “Karen Rogan, Your Honor.”

“Good. For the record: Ms. Rogan. She’d have to be blind not to have seen what was going on,” says the judge.

“The defense would stipulate that Ms. Rogan can testify as to what she saw,” I say.

“I’ll bet you would,” says the judge, “after seeing that tape. She can testify, can’t she?” Gilcrest puts it to Templeton like a robber pointing a gun.

“I don’t know,” says Templeton. “We haven’t planned to put her on for that purpose.”

“Well, maybe you should,” says the judge.

“Your Honor. .” Templeton tries to stop him before he can rule.

“Put her under subpoena and find out,” says the judge. “Next item.”

“Does that mean the tape is out?” says Templeton.

“It does.”

“Your Honor, the state takes exception.”

“I’m sure it does. Let’s move on.”

What I had hoped for: Gilcrest is our leveling hand.

The rest of the morning we run through pretrial motions, mostly minor stuff. We win a few, lose a few, until just before noon, when Templeton announces that he has a witness and outside counsel with an interest in the remaining issues. They won’t be available until afternoon.

Gilcrest decides to take the noon break. Harry and I head to lunch.

Mac’s is a greasy spoon three blocks from the courthouse, a small sandwich shop, a hole-in-the-wall stuck in the crack between two larger office buildings. Harry and I have made a habit of coming here for lunch whenever we’re in trial. There are four tiny tables against one wall, a counter against the other, and a narrow corridor between the two just wide enough for one person to walk. It is one of the few places within shouting distance of the courthouse where the walls don’t have ears. While the occasional bailiff or clerk may come in for takeout, there aren’t enough tables or space for the courthouse crowd to hang. Whenever the tables are full, Harry and I take sandwiches to one of the benches outside. It’s the nice thing about San Diego: you seldom have to worry about rain, and the last time it snowed, people were still hoofing it across the landbridge from Asia.

Today we are a little early and Mac’s is empty except for one other guy in a shirt and tie under a dark trench coat who came in just behind us.

The fare here is sandwiches, but for the few regulars who eat in and who know what’s available off the menu, Mac can turn a wicked Caesar salad, though it takes a few minutes. Harry orders the barbecue beef along with a towel to keep the sauce off his suit, then heads for the john through the closed door in the back.

I shuffle through a stack of newspapers by the register, find the front section of the morning edition, and grab a table.

Madelyn Chapman and the “Double Tap Murder Trial” make it into a double column just below the fold on the front page. Speculation that Isotenics, Inc., one of the largest employers in the county, may be drawn into the trial occupies the lead and several paragraphs following it. Apparently some enterprising reporter has heard the flutter of angst from Havlitz and his cronies over the subpoenas I served on his lawyer that day at the office. The fact that Harry and I are trying to burrow our way into filing cabinets out at Software City has the local economic prophets more than a little edgy. While the nationals may love the idea of dragging IFS into the middle of the trial, the local paper is nervous as to the fallout. If the government project is canceled, a lot of county residents-newspaper subscribers who fertilize the economy and justify full-page ads for white sales-could be laid off.

“I’ll have a Diet Coke.”

My eyes drift up over the top of the page to the guy in the dark blue trench coat at the counter.

“In the cooler behind ya. In cans.” Mac is busy cracking an egg into a stainless-steel mixing bowl, adding lemon juice, and beating it all with a metal whisk.

I’m working my way toward the bottom of the inside jump on the story when the bell over the door jingles behind me. I’m beginning to wonder if Harry has fallen in.

The customer at the cooler is looking my way. “You want a Coke?”

For a second I think he’s talking to me, then I realize he’s been joined by whoever it is that just entered.

“No. Not for me.”

I flip back to the second page to scan headlines as the footsteps from the door stop at the edge of my table. The guy’s stopped, probably to look at the menu on the wall over the counter. Then that feeling that always comes over you, something radiating from the sixth sense. No, he’s looking at me.

I look up just as he grabs the chair on the other side and slides it toward the open end of the table in the aisle.

“You don’t mind, do you?” He doesn’t sit. Instead he turns the back of the chair toward the table and puts his foot on it.

“I’m waiting for a friend. He’ll be back in a second.”

“This won’t take that long,” he says. “I just wanted to talk to you, give you a heads-up, before something bad happens. I’m a little worried that some of the stuff you’re getting into over at the courthouse is way off base. To tell you the truth, it’s not gonna do your client any good. And it’s possible that it could cause some real problems for you.”

The guy is big, six-three, maybe six-four, shoulders like a linebacker. His hair is dark, cut short, almost a buzz, but not quite. He is wearing aviator glasses, straight metal frames with a little clear plastic on the tip ends over his ears. I can make out just enough from the pupils behind the gray lenses to know that they are boring holes through me at the moment.

“Exactly what kind of stuff is it over at the courthouse that you’re worried about?”

“You know what I’m talking about.”

“No. I’m afraid I don’t.”

“Well, for starters. .” He pulls the newspaper out of my hands, leaving little tabs of torn newsprint between my thumbs and forefingers. Leaning with one foot on the chair, he closes the paper to the front page and starts to fold it up into a tight rectangle.

While he is doing this I’m studying his foot, which is almost in my lap. It must be a size thirteen. The rubber sole, heavy tread, covers the seat of the chair front to back. The high top of the tactical boot now exposed by the raised cuff of his gray polyester slacks doesn’t quite go with the dark turtleneck and the blue blazer.

When he’s finished folding, he leans down into my face, in close, invading my space, so that as he exhales I can smell his breath.

“This is what I’m talking about.” He pushes the folded paper into my chest with two fingers of his right hand. Even through the thick paper he somehow gets under my rib cage and triggers something in my diaphragm. Suddenly I’m struggling, trying to catch my breath. The pain is intense but I can’t move. It’s as if I’m paralyzed.

“I’m only gonna say this once, so listen.” He is down, right in my face now. “You’re nosing around in places you shouldn’t be. Sending out pieces of paper and looking for answers to questions you shouldn’t be asking.”

He takes his hand away and puts the folded newspaper on the table in front of me.

I gasp for breath.

The tight little rectangle of newsprint on the table displays only the headline and the story on Ruiz’s trial. He thumps the crinkled paper with his finger so that it sounds like metal hitting muffled wood. “This is what I’m talking about,” he says. “They say you don’t wanna believe everything you read in the newspapers. But this-this I would take to heart.” He lifts his foot off the chair and looks at his friend. “I think we’re done here.” He turns and walks toward the door.

His partner leaves a bill and some change on the counter for the Coke and swaggers toward me, his trench coat brushing the tables. “You wanna lean over, put your head between your knees. It’ll feel a lot better. I just hate it when he does that.” He’s smiling as he heads for the door.

Mac has his back to me as he mixes the salad. He’s missed the whole thing and doesn’t seem to be paying attention to either of them. A few seconds after I hear the jingle of the bell over the front door, Harry emerges from the back.

“Sorry it took so long.” Harry slides the chair out of the aisle to the other side of the table and sits.

I’m breathing again, but sweat is running down my face.

“Some young guy back there got jammed in the john with a bad leg. Says he caught some shrapnel in Iraq. He was trying to get out the back way to his car. Asked me if I could give him a hand. Clean-cut kid. Big guy. What are you gonna do?”

So there were three of them, one to stall Harry, the Good Samaritan.