Prime Witness

Chapter Twenty-seven

“Aw, your honor.” Hands in the air, arching back, Chambers is complaining to Judge Fisher. Then he stamps around on the floor like some six-year-old, slapping the thigh of his pant leg. He’s putting on a tantrum that seems to be more amusing to Fisher than disturbing.

“This was wrong,” he says. “There’s no basis, no basis at all.” Chambers is huffing and puffing below the bench, showing more aggravation than anger, playing on Fisher’s sense of fairness, like some sacred trust has been violated. He’s just been told about my earlier meeting with the judge, behind closed doors, my session to mask the evidence on the prime witness in the Scofield cases. Existence of a witness has not yet been mentioned. We can expect the eruption of Vesuvius with that.

“This is ex parte communication,” he says, Latin for “single party,” a one-sided conversation with the judge out of the presence of the opposing side, something generally considered a high taboo in the law. “Unethical as hell,” Chambers calls it.

To this, Fisher takes exception, a little personal privilege to shield his integrity. He cites the code section that permits this process for limited purposes.

“You’re being notified now,” says Fisher. “Everything was on the record,” he says. “The transcript of our in-camera session is available for review, on appeal.”

“Good,” says Adrian. “Then I would like a copy as soon as possible.”

“It will remain sealed until the appropriate time.”

“Not good enough,” says Chambers.

“It’ll have to be,” says the judge. “You don’t like it, take an appeal.” Adrian knows this will not get him a glimpse of the transcript. Only the court on appeal would see it, to ensure that Fisher has not abused his discretion in going behind closed doors.

The judge is in no mood to tarry with Chambers. Two-thirds of the motions filed by the defense bordered on the frivolous. In Fisher’s view he has now wasted four days hearing these.

Today has not been a winner for Adrian. After taking them under submission, the bulk of his motions have been denied by the court. The Russian’s statements to the security guards as they wrestled on the floor of the department store have been ruled admissible for trial.

Chambers has also failed to exclude the stun gun, which pathologists may now link to the burn wounds on two of the victims, the first two college kids.

In all, Adrian is not happy. It is the lot of the defense lawyer confronted with mounting adverse evidence. I know the sinking feeling that he must be experiencing now, in the pit of his stomach. Having lost on these motions, for Chambers and Iganovich the start of trial will feel like the second half of a football game, with the home team down 21-zip.

Fisher launches into a reading of the minute order from our closed session. Chambers is to get all our investigative and lab reports, everything we have on the Scofield murders with a single exception, he says.

“All information pertaining to any witness or witnesses to those crimes shall be withheld from discovery, treated as confidential and not disclosed to the public until such time as any and all witnesses are in police custody. At that time fair disclosure shall be made to the defense concerning any and all evidence provided by such witness.” He looks up. “Is that clear?” he says.

Chambers stands stone silent, staring up at the bench, his jaw slack, seemingly struck by this revelation. Several seconds pass, then a single question, nearly inaudible.

“There was a witness?” he says. Puzzlement like a mask on his face.

Iganovich has just heard the translation. He’s trying to talk to his lawyer. Chambers isn’t paying attention. Finally sees him, holds out a hand and tells him to sit down and be quiet. Chambers’s frustration is now matched by his client’s.

Fisher says that the court will not comment further on the matter, and admonishes the parties to exercise similar restraint. We are given copies of the order by the clerk. Chambers looks at his, reads it again carefully. He takes several seconds to mentally regroup, recover, like a prizefighter staggered by a punch.

“Your honor,” he says. “May we approach? A sidebar?”

Fisher waves us on.

Chambers, Goya and I huddle at the bench. Adrian’s doing all the talking.

“This is the first I’ve heard, your honor, about a witness. Clearly the state must have known about this for some time?”

He gets nothing but stone faces from the rest of us huddled there. He can see he’s getting nowhere like this.

“Well, of course, it’s a major coup,” he says. “Congratulations,” he tells me. He takes another tack, like maybe with this witness we are now finally on the track of the true Putah Creek killer. This is all very cordial, though Adrian’s face has the pallor of a sick man. Clearly we have caught him flat-footed on this.

Still, there is no question, he sees this as an opportunity for his case. The classic SODDI defense (Some Other Dude Did It) is always more persuasive with a jury when you can put a face to the deed. This is part of the reason why I have delayed in turning over information on the prime witness as long as I have.

When Chambers finds out what this witness knows he will no doubt move as quickly as possible to construct it neatly into his case. He will sand off the rough edges of discrepancy regarding this witness, his testimony, and the Russian’s version of defense. Knowing Adrian, he will apply a little lawyer’s license, indulge the facts until the two stories slide together like a well-oiled drawer. The longer I can keep him from this information, the better.

“You can understand this comes as a major surprise, this witness,” Chambers says to Fisher.

One of the chief purposes of discovery, that exercise in the exchange of information between opposing sides before trial, is the avoidance of surprise. Chambers reminds us all of this, still beaming with cordiality and smiles.

“This information, your witness, will be critical to my case,” he says.

Then he looks me square on, a broad smile, the expression of some intimate. “Of course I understand,” he says. “A disclosure of this kind, the identity of the witness, it would raise hell in the press.”

Chambers thinks we know who the witness is, just not where to find him. I leave him with illusions.

“You were wise,” he tells Fisher, “to provide a protective order.”

The judge is all smiles, delighted by Chambers’s demonstration of tolerance and understanding.

“Still,” he says, “it would be appropriate to share what the state knows. I’m an officer of the court, with an obligation to protect the interests of my client.” He reminds us that we’re all under a gag order.

Fisher doesn’t bite. “You’ll get all the information as soon as we have the witness,” he says.

“It is a critical witness,” says Chambers. “Until you can find him. .” He stops in mid sentence, calms down and looks at me. “I am assuming,” he says, “that the witness is a male?” He stands there, a big-eyed question mark.

I offer him the social intercourse of a chimney brick. “Never mind, not important,” he says. His inquiry dies.

“Mr. Chambers, is there a point to this?” sighs Fisher.

Chambers shields one side of his mouth with a legal pad to keep his voice from carrying. He’s giving sideways squints at the fourth estate in the front row.

“I wonder, your honor, if we could at least have some estimation as to how long before there will be some disclosure concerning this witness? How close are you,” he says, “to finding this witness?” This last is stated in high confidence to me.

“It’s a fair question,” says Fisher. “Any idea, Mr. Madriani?”

“We’re looking, your honor. It has top priority in our investigation,” I say.

“But no estimate of time?” he says.

“No. Not yet.”

“There you have it, Mr. Chambers.” Fisher looks at him. “Maybe your client would like to reconsider the time frame for trial? The court would be willing to accommodate,” he says, “if Mr. Iganovich wishes to change his mind, to waive time. In light of this information.”

Chambers makes a face, almost an idle gesture, like maybe he already knows the answer.

“Would you let me confer?” he says.

“Certainly. Take your time.” Fisher is more than willing. Anything to get Iganovich to waive time for trial, to push it back a few months, to give Ingel the tawny rose-colored hues of a tropical tan and the disposition to match.

Adrian’s off to the table, hunkered down with his client and the interpreter. A lot of talking and animation from the Russian, shrugging shoulders and perplexed expressions.

In less than a minute Chambers returns. “Can’t get him to budge,” he says. “He’s adamant. He wants a speedy trial.”

“Maybe I should try?” says Fisher.

“No. No. That would be a mistake,” says Chambers. “Let me work on him. I think if I push a little, he’ll come around.”

This is all very interesting, our little cabal, the judge, prosecutor and Iganovich’s own lawyer conspiring, a lovefest of reasonable lawyers, working to a common purpose, to get the Russian to waive time.

“If I can get him to see the importance of this witness,” says Chambers, “it will make a difference.”

We leave it at that, return to our respective positions at the counsel tables.

“Your honor, for the record,” says Chambers, “I must record my objection, perfect it for possible appeal. You do understand?” He’s talking about the failure to disclose all the information about our witness. It is one thing to understand the practical wisdom surrounding a court’s ruling, another to pass on possible grounds for a later appeal.

Fisher nods.

Adrian outlines what he believes is an erroneous ruling by the court, the failure to turn over what could be exculpatory evidence. A major hindrance to the defendant’s investigation of his own case, he calls it.

This is all very polite, not the Adrian Chambers of old. Just for the record, he says, ever solicitous of the court’s sensibilities. Then he finishes.

“Objection noted,” says Fisher, “and overruled. For the time being my order will stand.”

The judge is collecting his papers from the bench as if he’s about to adjourn.

“Is there any other business before the court?” he says. Fisher sits like an auctioneer, gavel raised ready to pound.

“Oh, there is one more thing,” says Chambers.

“What’s that?”

Adrian is shuffling through his briefcase looking for something.

“I was going to hold off on this,” he says, “but in light of this news, information on a witness.” He finds what he’s looking for, a single sheet of letter-sized paper, typewritten on one side.

“I move at this time,” he says, “that the state be ordered by this court to amend its indictment to charge my client with the Scofield murders. . ”

There are audible voices, murmurs from the front row of “Whaddid he say?”

Fisher stares at Adrian as if the lawyer has suddenly lost his mind.

“Or in the alternative,” says Chambers, “that the state be barred forever from bringing any charges in those cases against Mr. Iganovich.”

“What?” says Fisher. “You’re asking this court to order the prosecutor to charge your client with two more counts of murder?”

“Let me explain,” says Adrian.

“Mr. Chambers,” says Fisher, “you have more moods than the three faces of Eve.”

“There is authority, your honor.”

I’m out of my chair protesting. “Mr. Chambers had ample opportunity to notice this motion, to give us an opportunity to respond,” I say. “The People object and ask the court to rule it out of order, as not being brought in a proper manner.”

“Good point,” says Fisher.

“Your honor, I would not be bringing this motion at this time, except for the information dropped on me here today that there is a witness to the Scofield murders. Mr. Madriani has held charges in the Scofield cases in abeyance, refusing to commit himself as to whether he was going to charge my client or not. He’s made public pronouncements that he’s searching for another killer, a so-called copycat. Now on the eve of trial he tells us there’s a mystery witness out there somewhere. A witness who if found will testify to God knows what.”

Adrian makes a face, like what is he to do with all of this?

“I’m left to face the specter of a piecemeal prosecution. The state is free to try the first four murders against Mr. Iganovich and if they fail, if we obtain an acquittal,” his voice goes up, a single finger held in the air for effect, “then, Mr. Madriani can turn around and bring separate and new indictments against my client in the Scofield cases. He can change his mind about a copycat, say it was all a mistake, produce his secret witness who has suddenly shown him the light, and try again.”

Fisher looks at me only for the briefest second, wondering, I think, whether such a devious plot has crossed my mind.

“We should not be required to defend on a piecemeal basis,” says Chambers. “Make no mistake,” he says. “I’m not anxious to have my client charged with additional counts. But it is either that or the court must tell Mr. Madriani that he may not bring these charges later.”

“On what authority?” says Fisher.

“Kellett v. Superior Court, your honor. As I read that case,” he says, “Mr. Madriani is compelled to consolidate all of his charges in a single prosecution.”

Adrian holds up the piece of paper, a citation to the court opinion. “Nineteen sixty-six case,” he says, “and still good law.”

He passes the paper up to the judge. Fisher adjusts his glasses and reads. Several seconds pass. Then he arches an eyebrow and looks at me.

“Mr. Madriani, have you read this case?”

“The name doesn’t ring a bell, your honor.” Goya is scrambling behind me, fighting with a volume of the annotated Penal Code, the only resource book she has with her, looking to see if she can find a citation to the case, a veritable long shot.

“Maybe you should,” he says, “read it. I think Mr. Chambers may have a valid point.” He seesaws his head a little like maybe he’s about to make a ruling, some shot from the hip.

I cut him off. “Your honor, we should have time to consider this. To prepare a response,” I say. “At least to Sheppardize the case, to see if it has not been overturned by a later opinion, or limited to different facts.”

Fisher nods, aggravated that he is still not finished with these motions.

“Very well,” he says. Heavy sighs. “Forty-eight hours,” he says. “Two days. I will expect written points and authorities from each of you in two days. No more than five pages, on this single issue, the facts in Kellett. Do you understand, Mr. Chambers?”

Nods from Adrian.

Fisher looks at me. I give my assent.

“Don’t try to stretch it,” says Fisher. “This issue only.”

A solemn posture from Chambers, palm up like he’s taking an oath of honesty.

“This issue alone,” he says.

“We’re gonna eat it,” she says. “It’s settled law.” Lenore is talking about Kellett v. Superior Court. “I’ve pulled everything on it, every case in which Kellett is cited. Even punched it up on Lexis.”

Lexis/Nexis is the lawyer’s research tool for the computer-literate, cases input to the system back to the 1940s, all the law you can handle in a nanosecond.

We are back in my office, just before noon. Lenore has been up most of the night poring over the cases, researching Adrian’s latest shot. This one appears to have bounced into us, below the waterline.

“It’s not been overruled, or limited. In fact,” she tells me, “Kellett was cited in a case last year, that if Chambers finds, he will argue is on all fours with the facts of our own-separate charges of first-degree murder.” She hands me computer printout sheets still joined at the perforated tops and bottoms, four pages.

“Read it and weep,” she says.

This is bad news. I had hoped for some crack through which we might slip.

“There’s nothing we can use?” I ask her. We are obligated to provide points and authorities to an unhappy judge tomorrow.

She makes a face, like every good lawyer can always argue something-even if it’s only the direction of the grain in the wood on the table in front of him.

“Chambers overstepped himself, just a little,” she says. What she means is that he has stretched the legal authority of Kellett to the snapping point. I am not surprised with Adrian. On matters of law, he has always been famous for this.

“There’s no authority,” she says, “for the court to order us to charge Iganovich with the Scofield killings. That’s purely a matter of prosecutorial discretion. On that you call the shot alone,” she tells me. “There are some cases on point in there.” She taps the computer sheets in my hand.

“At least we can nail his feet to the floor on that,” I say.

“The downside is, the case slams the door on your fingers, if you fail to charge the Russian with the Scofield murders.”

What this means is that I must either charge Iganovich in Scofield or give him a free ride for life, irrespective of any evidence we may later discover linking him to those crimes, a lifetime pass for double murder. The city fathers will love it.

While Kay Sellig and my better judgment tell me that Iganovich did not do Abbott and Karen Scofield, the Kellett case forces me to fish or cut bait.

“Did you see this?” says Lenore. She’s holding a copy of the morning Times, the only paper so far to get the story right. They’ve used a law grad as a reporter to cover this trial. This morning it’s paid off. After research they have come to the same legal conclusions as Goya.

The rest of the pack have gotten it all wrong. They are reporting that the court is about to order me to charge Iganovich with these crimes, but that I am resisting. They leave it to the reader to decide whether it is simple incompetence or corruption that is my motivating force.

As I turn into my driveway this evening coming home from work, I see Nikki at the mailbox. Dressed up, with her purse in hand, apparently she’s just beaten me home from some errand or other.

Sarah’s outside the front door, waiting for her mother to come and open it with her key, when she sees me.

Before I can turn off the headlights, my daughter’s at my car door clutching at the handle to open it. “Daddy, daddy.” The unbridled enthusiasm of little children happy to see a parent, one of the only true touchstones of life.

I pick her up and listen as she tells me about her day, where they’ve been. Something about a puppet show and friends. At the age of five, for children of moderate affluence, life is nearly always good, it seems. Nikki and I have talked about this, whether we are spoiling Sarah.

Nikki has made her way back up the driveway. A peck on her cheek. “How was your day?” I say.

“OK. And yours?”

“Fine,” I tell her. I don’t get into it, the mess over Adrian’s latest motion, the points and authorities, my continuing travails in the press. Nikki would not be sympathetic.

Lenore believes Chambers is pursuing his grand strategy in all this. Before I left the office we discussed it, his full-court press to get me to charge his client with two more murders. If we succumb, Lenore believes Adrian will drop his alibi on us at trial, solid witnesses or irrefutable documents which can place Iganovich already in Canada on the day the Scofields died. This would raise the specter of a shoddy investigation. So far we have not managed to come up with any solid information retracing the Russian’s steps on his trip up north.

This leaves me with a large dilemma, whether to charge him in Scofield or not. If I do, and there is another killer, for all intents I may give him a free pass. Except for conspirators and co-defendants acting in conceit, juries don’t like cases in which others have previously been charged with the same crime. It makes the system look too chancy.

“Home a little early tonight,” says Nikki. I look at my watch. She’s right. It’s only a little after eight. Darkness is coming earlier with each day now that we are edging toward autumn.

Nikki’s picking through the mail, separating hers and mine. Along with all the household chores, Nikki has now taken to paying the bills, another job that I no longer have time for. More of the load for Nikki to shoulder. The only thing she hands me is an envelope marked “occupant.”

“I’m not sure you qualify,” she says. Only the slightest smile. We both know there is a broad band of truth here.

She keeps for herself a letter addressed to the two of us, no return address or stamp. This apparently has been put in our mailbox by a neighbor, or some business trying to beat the government out of postage.

There’s another envelope. She looks at the return address.

“Jim and Mary,” she says. Suddenly a little lightness coming into her voice.

Jim and Mary Blaycock are former neighbors who moved back east last year, a job transfer. We have been missing them greatly, one of those relationships beginning to blossom when it was cut short. They have a little girl, Sarah’s age, and a son a little older. The chemistry of the children at play was something special that cemented the two families’ close kinship.

Nikki peels the envelope and reads as I open the door and turn on the lights in the entry hall.

I get the news in the letter line by line from her. The kids have started back to school, Jim has been promoted, Mary’s still looking for a job.

“They’ve invited us to go back for Christmas. Oh, that would be great,” says Nikki. “Snow for the holidays. Good friends.”

I can hear in my mind the unstated: Something to look forward to besides this empty existence.

She starts to package the letter up again, like so much for dreams.

“We’ll look at it,” I say.

She looks at me. “Really?”

“I can try to clear my calendar. I think we can probably do it.”

Suddenly her face is more animated than I have seen it in months. She grabs me by both shoulders, letter crinkled in one hand, and plants a deep, passionate kiss on my lips, molding her body to mine. It is the first show of real affection I can recall since my decision to help Mario Feretti.

“I said we’d look at it.” I’m trying to temper this now, prevent too many rising expectations.

“Sure,” she says. “Sarah. How would you like to go see Tim and Susie for Christmas?” Sarah’s all smiles. “Oh yes.” Little “yippee’s,” while she jumps around the table in the dining room.

“Aren’t you gonna open yours?” Nikki’s looking at the letter marked “occupant” in my hand.

“I think I’ll save it for later,” I tell her. “Something to balance the good news. What’s for dinner?”

Sarah’s already eaten, she tells me.

“How about I get a couple of steaks from the freezer, nuke ’em to thaw in the microwave and I’ll broil them? Baked potatoes and a salad to round it out,” she says.

“A little wine to celebrate.” She holds up the letter like our trip is now an accomplished fact. My wife can be good at manipulation.

“Fine. I’m gonna change. Be out in a minute,” I tell her.

I drop my briefcase in the den on my way down the hall and find my casual clothes hanging on the hook in the closet where I left them last weekend. Lately I have been getting home so late in the evening that changing into something comfortable is a waste of time and energy.

I’m into a light sweater and a pair of Dockers when I hear something smash on the kitchen floor, a bowl or dish. Sounds like a million pieces. No swearing or commotion after this. Nikki must be in a good mood, I think.

A minute later I’m buckling my belt as I walk down the hall toward the kitchen. Nikki is seated at the table, a single light on over her head. The rest of the kitchen is in shadows. I look at the microwave. It’s off. No steaks on the countertop. The broken dish, shattered in splinters, is on the floor. It is a hand-painted soup tureen, porcelain ladle and top, a gift from her parents that she has guarded with her life for ten years.

“Aw jeez. I’m sorry.” I’m looking at the bowl, little pieces all over the floor.

Nikki is not. Her head is bent low, over the table, resting in her hands, elbows propped. For a moment I thinks she’s crying. But when she looks up at me, it is not tears I see, but the abject face of fear, sheer and undisguised. This is something utterly alien to my wife’s expression, a look I have not seen more than twice in our marriage, the first time when we were told that Sarah might have juvenile diabetes, a blood test the results of which had been misread.

“What is it?” I say.

She is speechless, motioning with her hands. There spread before her on the table is an envelope, a single sheet of letter paper and a glossy photo. She says nothing, unable to speak, like her jaw is wired shut, but pushes these toward me. I pick up the page and read.

Before I can make out the first word, I know that I should not have touched this paper. The cops will want to dust it for prints. The words, some letters, have each been individually pasted on the page, neatly clipped from newsprint, magazines and newspapers. The prose has all the elegance of a Western Union telegram.

You FuCKing IVan LOVER

Charge THE russian OR Else

The note itself would be almost comic if it were not for the accompanying photograph. Someone has gone to considerable trouble to produce this. It is not the garden variety snapshot developed at your neighborhood Kodak dealer. This is a large glossy, five-by-seven inch, black-and-white, the kind not even processed by many commercial labs any longer. It has an artsy quality about it, shot against a darkening gray sky that I suspect is early morning, with a familiar backdrop.

It’s the playground at the Westchester-Sarah’s school. There in the foreground with two other little children I can see Sarah playing on the bars. It is hard to tell how far away she is from the camera. If the photographer has not used a telephoto lens, I would guess no more than ten feet.

I call Sarah. She’s watching television in the front room. She comes into the kitchen. I show her the picture. Nikki’s still sitting, looking at me, silent, at the table.

“Sarah. Do you see this picture?”

A big nod. She knows something is wrong from the tone of my voice.

I stand her up on a chair so that she can see the photo lying on the table, without anyone touching it.

“Do you remember someone taking your picture at school? Here while you were playing on the bars?”

She looks at me with an expression reserved for those times when she has been in trouble. Large round eyes, she shakes her head resolutely, like she is not responsible for this. She sees her mother, the face of fear. Now my daughter has joined my wife in wordless silence, intimidated by my interrogation, looking at me, wondering, I think, what is happening to her sheltered world.