Undue Influence

Chapter 30

My opening statement to the jury is brief, and probably obscure. It is not the blistering assault on Jack that I have honed to a bristling point for the past month.

‘In a few moments,’ I tell them, ‘you are going to hear testimony and see evidence that for some of you may cause considerable dismay. For others,’ I say, ‘it will merely serve to confirm your darkest suspicions about the nature of man and his institutions of justice. This evidence,’ I tell them, ‘has come into my possession only within the last thirty-six hours, and in many ways it comes as more of a shock to me than it may to all of you.’

Thirty seconds after I call her name, Dana Colby walks through the courtroom door and up the center aisle. She is calm, almost serene, in a dark blue suit, the kind a prosecutor would wear to court, and heels that click on the marble floor.

She walks past me as if I am not here, not a look or whisper of recognition, her stone-cold gaze straight ahead up at the bench.

Laurel is at the table with Harry, asking him questions, why I am putting Dana up. We have not had time to bring her current, and until this evidence is in, I have no idea as to its impact on the jury or the judge.

There is a flurry of activity at Cassidy’s counsel table. Among other things, she and Lama are checking our witness list to ensure that Dana’s name appears. What was originally intended as chaff on our own list was seen by them as just that. They had forgotten that Dana’s name was there. Now they are surprised when she actually appears and takes the stand.

She is sworn and sits, her gaze fixed on the middle distance somewhere at the back of the courtroom. The only hint of any anxiety some mild thumping with two fingers of one hand on the arm of her chair.

She refuses to make eye contact with me, as I have refused to take her calls or see her for two days now, since having her served with the subpoena to appear here. I think she knows, or has possibly guessed what we have.

Dana tried to camp in my office this morning to catch me, a meeting I wished to avoid, so Harry and I stayed away, prepping for court at a coffee shop two blocks down the street until moments before we arrived here.

‘State your name for the record?’ says the clerk.

‘Danielle Elizabeth Colby.’

I had not known her first name was Danielle until this moment. Perhaps a measure of just how little I know about this woman.

I move dead center in front of the witness box where she can no longer ignore me, and standing here, we finally confront each other.

‘Ms. Colby, would you tell the court what you do for a living?’

‘I’m a Deputy United States Attorney.’ There is a deadpan to her voice, emotionless, as if something has been drained from the woman I thought I knew. There is more than a little pain in this exercise for me.

‘Chief Deputy in your office for the Eastern District of this state, is that not so?’ I say.

‘Yes.’

‘In a word, you are a federal prosecutor, aren’t you?’ I ask.

‘Yes.’

I am leading her shamelessly, but all of this is harmless and Cassidy is anxious to have me get to the point. I think perhaps Morgan has not picked up on the friction between us, and believes that we are working in tandem to do a number on her case.

‘Ms. Colby, who were George and Kathy Merlow?’

With the mention of their names she stiffens, like someone has shot a mild jolt of electricity through her chair.

‘They were neighbors of the victim in this case, Melanie Vega,’ she says. ‘They lived in the house directly next door.’

This is not what I am looking for. Dana is adroit. She manages to avoid the question, so I am left to use this to spin a little silk and crawl further out into the web.

‘And to your knowledge did they reside there, in that house next door, on the night that Melanie Vega was murdered?’

‘Yes.’

‘Before that night, did you ever have occasion to talk with George or Kathy Merlow for any reason?’

Dana has beautiful eyes even when they are darting in discomfort as they are now. Her tongue searches for saliva.

‘I might have,’ she says.

I nod slowly. I am not enjoying this, and I think she knows it, so she embellishes a little to get me away from the nub of it.

‘We lived in the same neighborhood, you see a lot of people,’ she says. ‘I might have seen them someplace or other.’ She makes this sound like some social accident, a rubbing of shoulders that cannot be recalled with precision.

‘I see. Might one of these places where you met George and Kathy Merlow have been your office downtown at the justice department?’

Finally we arrive at the point, like a prime number, an issue that cannot be divided by half-truths.

She looks up at the judge. ‘Your honor, if we could have a moment in chambers,’ she says. ‘There are matters of critical importance, life and death,’ she says.

Woodruff has heard a lot of things from the bench, but never a witness asking for a private conference in the middle of her testimony.

‘Is there something wrong with you physically?’ he says. ‘Are you ill?’

‘No, your honor.’

‘Then you should answer the question,’ he says. Dana’s moment of truth.

‘I might have. I can’t remember.’ Truth turns to evasion.

‘Surely that is something you would remember, a meeting in your office?’ I say. I try to bring her to it gently, as little pain as possible, like a cyanide capsule cracked between the molars.

‘I meet with a lot of people,’ she says. ‘I cannot remember them all.’ She writhes and squirms, a futile and agonizing effort to put off the inevitable.

All the while I can see Laurel pumping Harry, a series of heated one-liners in his ear. She wants to know what I am doing. What Dana has to do with all of this.

‘Isn’t it a fact, Ms. Colby, that the night you met the Merlows outside in front of their house, the night Melanie Vega was murdered, that you were there not as some itinerant passerby but on business?’

‘I don’t know what you’re talking about,’ she says.

‘Isn’t it a fact that you went to meet George and Kathy Merlow as a representative of the United States Department of Justice to assure them that they would be all right, that everything would be taken care of?’

She looks at me like I’m smoking some bad weed.

‘Who called you?’ I say. ‘Was it your boss, because you lived closer than anyone else? Or did you have some special relationship with them, something like a caseworker?’ I say.

‘Your honor, I think counsel is confused,’ she says. ‘Someone has clearly given him misinformation. Misled him,’ she says, ‘for whatever reason.’

In all of this there is a lot of protest, but it is not lost on Woodruff that there is neither a denial nor a reply to my question.

‘I’m waiting for an answer,’ I say.

‘Your honor.’ She is still looking up at him, a plaintive appeal falling on deaf ears.

He tells her to answer the question.

She takes it to a level of higher appeal. She turns to me.

‘Can’t we talk? I thought you cared.’ She mouths these words in a whisper so low that the court reporter asks her to repeat them. She has missed them for the record.

Dana ignores this.

‘At the moment,’ I say, ‘what I care about is your answer to the question.’

‘Fine,’ she says. There is a transformation that takes place in this instant. It is measured in her eyes, a recognition that anything that might have been between us is gone, vaporized by deceptions now being dragged by the painful process of the law into the naked sunlight.

‘You want to know about Kathy Merlow?’ she says.

‘Yes.’

‘Fine. I’ll tell you. Kathy Merlow was part of what is known as the federal witness relocation program.’

‘She was a federally protected witness?’ I say.

‘Yes.’

‘What was her real name?’

‘Carla Leopold,’ she says.

‘How did she come to live in Capital City?’

‘She had testified in cases on the east coast, against certain organized crime figures. As a consequence there was a contract out on her life. She was given a new identity along with her husband, and moved to this city in order to protect their lives. It was part of a plea-bargain.’

With this there is the low rumble of voices through the courtroom, a stirring in the press rows as a dozen heads come up. Pencils stop their little squiggles. A lot of wondering as to where this fits in our case.

‘Your honor, what is the relevance of this?’ Cassidy is out of her chair, watching all of this from the railing in front of the jury box. She probably believes Dana and I have concocted this story to provide a defense in a faltering case. What she senses is that the jury is listening. The objection is designed to break my stride.

‘Your honor, if I could make an offer of proof. I think it will become abundantly clear that the information from this witness is highly relevant.’

‘Make it quickly,’ says Woodruff.

‘Ms. Colby. Are the couple known as George and Kathy Merlow dead or alive?’

Dana’s face at this moment is drained of all emotion, though this question seems to take her by surprise, that I of all people would ask it.

‘They no longer go by the name of Merlow,’ she says.

‘So they have a new identity?’

‘Yes.’ She admonishes that if I ask she will not tell me what it is. I don’t ask.

‘But they are alive?’

‘Yes.’

It is what I’d suspected, ever since my conversation with Harry. His cynicism that the government can do only two things well: print money and provide new identities. It was the spark that fired all the little pieces that didn’t fit; Clem Olsen’s information about the fingerprint on the paint tube and the woman named Carla Leopold, the accountant employed by the Regal International Trading Consortium, a front for organized crime; her ‘death’ nearly two years ago in a fiery auto accident on an east coast highway; and her seeming resurrection on a grassy churchyard knoll in Hana two months ago. It had worked once before, death and resurrection with a new identity, so why not simply do it again? There had been no murder in Hana, only the illusion, to stop me from looking.

But there had been a killer. For this Dana apologizes openly on the stand.

‘We knew that he was still active because of the postal bombing,’ she says. ‘It was his MO,’ she says.

Marcie Reed was murdered for a simple reason, to keep her from telling me what she knew — that her friend Kathy Merlow was a relocated witness. Merlow had confided in the one friend she had found in Capital City, and it had cost that friend her life. The people who had come to see Marcie before Harry and I were not Lama and his troops as we had suspected, but contract killers, on the track of Merlow. When they discovered that I was dogging her as a witness in Laurel’s case they decided to follow along. What better than a lawyer armed with judicial process to force a witness to ground? One word from Marcie and I would have stopped looking. I would have had a defense much more stout than a mere eyewitness to the crime. I would have known what I now know.

‘We knew that he’d been commissioned to do the hit.’ Dana’s talking about the contract killer, and that he was looking for the Merlows. ‘You were just a little too convenient,’ she says.

‘So you used me as bait?’ I say.

‘I never thought you would be in any real danger. We tried to get him on the way out at the airport, at Maui. We missed,’ she says.

Much of this is going past the jury, so I regroup for their benefit.

‘Let’s go back to the night of the murder. Who asked you to go and meet with the Merlows?’

‘My boss,’ she says.

This would be the United State’s Attorney for the Eastern District. A Presidential appointee. I am beginning to sense that this thing reaches much higher than I thought. Dana has been burning up the air between here and D.C. I had assumed these were related solely to her judicial aspirations. Now I suspect that even that has some more sinister origins.

‘And why did he ask you to go and meet with the Merlows?’

‘To make certain that they were all right.’

‘Because Melanie Vega had been murdered that night?’

‘That’s right,’ she says.

‘Your honor, this is getting us nowhere.’ Cassidy is tromping around in front of her table now. ‘I still don’t see any of this as relevant. These people, the Merlows, did they see something or not? I mean, they’re either witnesses or they aren’t. If they’re witnesses, let’s put ’em on; if they’re not, let’s move on.’

Cassidy is getting a lot of support from Lama, head nodding like ‘right on.’ She still doesn’t get it.

‘If I could ask one more question, your honor, maybe I could clarify.’

He gives me a nod.

‘Ms. Colby, why did the federal government move George and Kathy Merlow in the middle of the night, on the very evening that Melanie Vega was murdered?’

‘Because we had reason to believe that Mrs. Vega had been murdered by mistake, that the intended victim was Kathy Merlow.’

As Dana says this, it sweeps like a tornado over the press rows at the front of the courtroom.

The pool camera at the back of the courtroom is whirring, its videotape capturing this. I can sense a transformation, from the local to the national angle as some of the gray heads in the press rows turn to each other and look, wide-eyed, wondering at the implications of all of this.

Cassidy is protesting that we have injected elements of evidence that were beyond discovery. She actually moves to strike all of Dana’s testimony on grounds that it cannot be verified.

‘Records of federally protected witnesses are sealed,’ she says. ‘What documentation do we have for any of this? How can the state possibly verify it?’

The fact that Dana has torched her career by these admissions seems to offer little proof of veracity, as least to Morgan Cassidy.

‘I might be able to help with that,’ I tell her. ‘Documentation,’ I say.

Cassidy’s mouth is a gaping hole, a cavern of silence as I offer this. It is clearly not what she wanted. Before she can speak I’m back from the counsel table with a stapled sheaf of papers handed to me by Harry. He’s passing out copies, one set to the clerk and another to Lama at the counsel table, where he is joined by Cassidy.

I show this document to Dana and she identifies it — a list of federally protected witnesses on a computer-generated form, something used by Justice and electronically sent over secure channels to field offices around the country. She asks me where I got this. I do not tell her. It came from a gracious editor at a newspaper in Lexington, Kentucky. What finally brought me to my senses was the news article read to me by Harry months before, the piece about the botched computer sale by the Department of Justice, the weak magnet used to erase the computer hard discs, and the eventual sale of these computers, still containing their highly confidential information, to the public. It was the news article that Harry hung on the bulletin board of the dayroom at the county jail, the one warning snitches to beware.

‘Your department had reason to believe that the Merlows were compromised, didn’t they?’

‘We had reason to believe that a number of relocated witnesses had been compromised.’

‘Why?’

She confirms the almost laughable folly with the computers. How Justice and the FBI tried to buy them back, even raided some homes and businesses, using warrants, to confiscate some of the equipment. I can tell this gets Harry’s ire, all the juices of the original story repackaged and concentrated. In the end the information was too far disseminated for the government to unring this particular gong. So they set about trying to relocate the witnesses, new identities on a priority basis, those believed to be most in danger first.

‘But they didn’t get to the Merlows right away, did they?’

‘No.’

‘Not until after Melanie Vega was murdered?’ I say.

‘That’s right.’

‘Ms. Colby, I want you to think very carefully. I’m going to ask you one final question, and I want you to answer clearly for the court. What did the Department of Justice discover after the murder of Melanie Vega that so upset them, that caused them to conceal this information, to withhold it from an attorney defending his client on charges in connection with that murder? Tell us,’ I say, ‘what was it that they found in those compromised computer records?’

Everything I have done, the entire foundation I have laid up to this point, has led to this question.

Dana sits poised in the box, the only person in the courtroom besides Harry and myself who knew that this moment would come.

‘They discovered…’ Her voice cracks a bit. ‘They discovered that the street address, the new street address on the computer records for Kathy Merlow, was wrong,’ she says. ‘A typographical error.’

‘Whose address was it?’

‘It belonged to Jack and Melanie Vega.’

There is a palpable roar that echoes through the courtroom, an audible wave of indignation that rolls through the public areas of this room — the thought that those charged with justice would conceal such an outrage. An innocent citizen dead, another on trial for her murder, when the barons of bureaucracy in Washington have known the truth for many months. Reporters are out of their chairs heading for the cameras in the hallway outside, visions of the lead on ‘Headline News.’

Woodruff is fanning pages of the computer document on the bench. When he finds it, he looks at me from on high, a glazed expression. His glasses fairly slide to the end of his nose before they drop off, where he catches them on the rebound off the blotter on the bench. He sinks back into the tufted leather of his chair. Melanie Vega and her child were murdered because a clerk in the bowels of the bureaucracy in Washington made a typographical error.

At this moment, the expression on Woodruff’s face is a hybrid between wonder and fury.

I can only surmise how high this thing goes. There is no doubt in my mind that Cabinet members in Washington will be ducking for cover by nightfall, an attorney general doing mea culpas, insisting that the buck stops at her desk, while she casts for underlings to throw onto the pyres of sacrifice, to appease the gods of politics. It is a scenario we have seen before, staged in other scandals.

As I look at her, drained and worn in the witness box, there is not a doubt in my mind that Dana will figure high on their list of victims. Her dreams of judicial glory are wafting on the winds, like the odors of carbonized wood in the wake of a wildfire.

Woodruff is banging his gavel on the bench, trying to bring the place back to order.

Cassidy is trying to holler some objection or a plea from her counsel table, but cannot be heard. Finally the judge’s voice breaks over the din. ‘There will be order or I will clear the room,’ he says. ‘Mr. Bailiff, have those people sit down or tell them to leave.’

It takes nearly a minute for what passes as order to be restored, a restless vapor of electricity floating just above our heads.

‘Your honor, we, the state, knew nothing about this.’

Cassidy’s protestations from the counsel table.

‘Speak for yourself,’ says Dana.

For the first time this morning I am surprised by the words that pass from Dana’s lips.

‘I cannot prove that you knew,’ Dana says. ‘But your investigator sure as hell did.’

What is clear is that Dana is not going down on this alone.

With this Cassidy is floored, looking at Lama with a face of betrayal. If it were anyone else she would not believe it, but with Jimmy’s track record to date, instinct tells Morgan not to jump to his defense too quickly.

‘Please explain that?’ I say. Dana is still my witness.

‘I mean that as liaison to the FBI in the postal bombing case, Lieutenant Lama was informed that the victim, Mrs. Reed, was a friend of Kathy Merlow, and that Mrs. Merlow was a federally protected witness.’

Suddenly there is more than a crack in the door. There is a stillness in the courtroom, the sense that even if they do not know how, a second shoe has just dropped.

‘Your honor, this was never disclosed,’ I say. ‘Exculpatory evidence critical to our case, withheld by the state,’ I tell him.

Lama has known since before we went to trial that Kathy Merlow was the target of a hired killer.

I look at Cassidy, and I know in this moment that she is as much victim in this as Laurel and I. Lama has used her in his war with me.

She is protesting that she never knew, that Lama never told her. Jimmy is out of his chair, singing a swan song, telling the court that he didn’t understand the significance, his reason that he never told anyone. He wants Woodruff to believe that this, dirt that every cop on the beat would chew on over doughnuts and coffee, a connection with their idols at the FBI, that Jimmy would keep this to himself ignorant of its consequences.

Woodruff does not buy this. The only question, he says, is whether or not there was malice in this act of concealment. The judge is now talking legal parlance, the difference between a mistrial and outright dismissal. For us the distinction is cosmic.

Cassidy is pleading for a mistrial, no hard evidence of any intentional wrong, she says. An oversight. This would give her the chance to retry Laurel, to put us to this agony one more time.

If Woodruff dismisses with the jury in the box, jeopardy would attach. Laurel would be a free woman.

‘You would subject the defendant to a second trial?’ says Woodruff. This he poses to Cassidy.

She hems and haws. ‘A question I would have to discuss with my boss,’ she tells him.

Cassidy simply wants to avoid the hammer being dropped in this way, a judge forcing her to eat crow, feathers and all.

‘One question,’ says Woodruff. ‘Knowing what you know now, would you, as a professional prosecutor, have brought charges against the defendant, Laurel Vega, in this case?’ It is the ultimate issue.

Cassidy hesitates for only the briefest moment, the answer is not on her lips, but in her eyes, an admission that Woodruff reads as well as I. It is in this instant of hesitation that I hear the silence of salvation.

‘That’s what I thought,’ says Woodruff. ‘I will not subject the defendant to the uncertain anxieties of a second trial,’ he says.

‘The case is dismissed. The defendant is discharged. I will make my findings of malice in writing, to be submitted to the parties.’ As he says these words, there is a baleful smile that passes across Austin Woodruff’s face, the kind you see when a judge knows that he has, in the end, dispensed justice.

‘This court stands adjourned.’

I don’t even have time to thank him. There is a throng coming around the railing, Laurel pressed in a sea of bodies. I move to the table.

‘What happened?’ she says.

‘You are free.’

For what seems like an eternity, I think she cannot comprehend this, then suddenly she stands, her arms about my neck, the warmth of wet tears on the side of my face. ‘Can I go to my children?’ she says.

‘You can go anywhere you want,’ I tell her. ‘You are free.’

I tell her that Danny is in town. This brings her instantly back to the realm of sobriety. ‘Where?’ is all she asks. I tell her at her apartment. She wants to see him immediately, and asks me to call Julie.

People pushing in with notepads, asking questions, how she feels, whether she thinks justice was done, whether she is angry with the government for not disclosing the truth about the federal witness, whether she is considering a civil suit.

Harry stops her from answering this last in a moment of euphoria. ‘We are studying it,’ is all he will say. Harry has his abacus out, wondering if we can add to the national debt.

In this instant of chaos I am pushed away, floating in a current of bodies beyond Laurel’s reach as several reporters and some well-wishers get between us.

Laurel shouts, cupped hand to mouth. I cannot understand her.

There is a fleeting image, a face beyond the crowd like a subliminal image on film, something from an arched church window in Hana, and then it is gone. I shake my head, fatigue and stress.

She is shouting again.

‘Dinner at Fulton’s, six o’clock,’ she says. ‘My treat.’

I nod, and she is gone.