Beyond Suspicion

37

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Slivers of late-afternoon sunshine cut through the venetian blinds. It was annoying to the eye, but Assistant State Attorney Benno Jancowitz left things just the way they were. Any time he hammered out a deal with a witness who was willing to turn state’s evidence, he didn’t like his guests to get too comfortable.

Seated across the table from the prosecutor was Hugo Zamora, three hundred pounds’ worth of criminal defense lawyer with a voice that boomed. At his side was a nervous Dr. Marsh. The desktop was clear, save for the one-page proffer of testimony that had been prepared by Zamora. Typed on the proffer were the exact words that the doctor would utter to a grand jury, assuming that the prosecutor would agree to grant him immunity from prosecution.

Jancowitz pretended to read over the proffer one last time, drumming his fingers as his eyes moved from left to right, line by line. Finally, he looked up and said, “I’m not impressed.”

“We’re certainly open to negotiation,” said Zamora. “Perhaps put a finer point on some of the testimony.”

“It just doesn’t help me.”

“I beg to differ. Your case against Mr. Swyteck rests on the assumption that Jack Swyteck and Jessie Merrill were having an affair. I presume your theory is something along the lines of Jessie Merrill was threatening to reveal the affair to Swyteck’s wife, so Swyteck killed her.”

“I’m not going to comment on my theories.”

“Fine. Let’s talk evidence. The proof you have of an affair is the audiotape that came from the inventory of property in Ms. Merrill’s estate, correct?”

“I’m not going to comment on the nature of the evidence we’ve gathered.”

“You don’t have to. We both know that police departments are sieves. I won’t name names, but it has come to my attention that your own expert has confirmed that this so-called smoking gun of an audiotape is not an original. There is no original. All you have is a copy, which leaves the door wide open for Swyteck to argue that the missing original was made before he was even married. It doesn’t prove anything.”

Jancowitz said nothing.

Zamora continued, “Now, Dr. Marsh here is ready, willing, and able to plug this gaping hole in your case. He, of course, denies that he was ever part of this alleged scam that Mr. Swyteck talks about. But he will tell the jury that after his serving as Jessie Merrill’s doctor, they became close friends. That on the night Jessie won her trial against the viatical investors, she came by his apartment to thank him personally. That one thing led to another, and they ended up making love.”

“I know, I’ve read the proffer.”

“Just play the tape.”

“I don’t need to play it.”

“I’ve already fast-forwarded to the important part. It’s less than twenty seconds.”

He thought for a moment, sipping his lukewarm coffee. “How is it that this tape came into existence?”

“It was something that this Jessie apparently liked to do. You already know that from the other tape you have.”

“So you’re telling me you have a tape of Dr. Marsh and Jessie Merrill actually having sex?”

“Yes. It’s not a very good tape. She just set the camera up on a tripod and then the two of them… you know, did their thing.”

Jancowitz glanced at Marsh, a man older than himself, and said, “Is it really necessary for me to watch this?”

“No. We can kill the video portion. The only thing that matters is what was said.”

“I can live with that,” said Jancowitz.

Zamora handed him the tape. There was a small television set with built-in VCR player on the credenza. Jancowitz inserted the videotape and dimmed the screen to black, for the sake of his own eyes and Dr. Marsh’s modesty. Then he hit play. Jancowitz returned to his seat, then leaned closer to the set.

“I don’t hear anything.”

“Turn it up,” said Zamora.

He increased the volume. A rustling noise followed, some kind of motion. A woman laughed, though it sounded more evil than happy. A man groaned.

“It sounds like bad porn,” said Jancowitz.

No one argued. Dr. Marsh sank in his chair.

On tape, the voices grew louder. The heavy breathing took on rhythm, and Jessie’s voice gained strength.

“That’s it. Harder.”

All eyes in the room were suddenly fixed on the screen, even though it was black. No one wanted to make eye contact.

“Harder, baby. That’s it. Give it to me. Come on. Come on, that’s it, yes, yes! Oh, God-yes, Jack, yes!”

Zamora gave the signal, and the prosecutor hit stop. He gave Jancowitz a moment to take in what had just played and said, “You heard it?”

“Yes.”

“She clearly said the name Jack.”

The prosecutor grimaced and shook his head. “It just doesn’t do it. All you’ve got is a woman crying out another man’s name.”

“Not just any name. Jack, as in Jack Swyteck.”

“That doesn’t establish that she and Swyteck were having an affair. At most, it just establishes that she fantasized about Swyteck while she was making love to Dr. Marsh.”

“Right now, you have nothing to prove the existence of an affair. This is a lot better than nothing.”

“I think there’s plenty more to this triangle than you’re telling me. If you want immunity from prosecution, you’d better fork it over.”

“We’re giving you all we have.”

“Then there’s no deal.”

“Fine,” said Zamora. “We’re outta here.”

“Wait,” said Dr. Marsh.

Zamora did a double take. “Let’s go, Doctor. I said, we’re outta here.”

“I’m a respected physician in this community, and the stink from this Jessie Merrill situation is tarnishing my good name. I won’t allow this to drag out any longer. Now, Mr. Jancowitz, tell me what you want from me.”

“I want the truth.”

“We’re giving you the truth.”

“I want the whole truth. Not bits and pieces.”

Zamora said, “Then give us immunity. And you get it all.”

The prosecutor locked eyes with Zamora, then looked at Dr. Marsh. “I’ll give you immunity, but I want two things.”

“Name them.”

“I want everything the doctor knows about Swyteck and Jessie Merrill.”

“Easy.”

“And I want your client to sit for a polygraph. I want to know if the doctor had anything to do with the death of Jessie Merrill. If he passes, we got a deal.”

“Wait a minute,” said Zamora, groaning.

“Done,” said Marsh. “Ask away on the murder. But I won’t sit for a polygraph on the viatical scam.”

“You got something to hide?” asked Jancowitz.

“Not at all. With the complicated relationship I had with Jessie, I’m concerned that you might get false signs of deception, depending on how you worded the scam question. But if you want to ask me straight up if I killed Jessie Merrill, I got no problem with that.”

“Fine,” said the prosecutor. “Let’s do it.”

“Hold on, damn it,” said Zamora. “My client obviously wants to cooperate, but I’m not going to sit back and let the two of you rush into something as important as a polygraph examination. Right now, Dr. Marsh and I are going to walk out that door, go back to my office, and talk this over.”

“I want to get this done,” said Marsh.

“I understand. A few more hours isn’t going to kill anyone.”

“I’ll give you twenty-four hours,” said Jancowitz. “If I don’t hear from you, I’ll subpoena Dr. Marsh to appear before a grand jury.”

“You’ll hear from us,” said Zamora.

“You know the deal. Pass the polygraph on the murder and tell all.”

Marsh rose and shook the prosecutor’s hand. “Like my lawyer said: You’ll hear from us.”

The prosecutor escorted them to the exit, then watched through the glass door as they walked to the elevator. He returned to his office, tucked the videotape into an envelope, sealed it, then took out his pen and drew a little star on the doctor’s witness file.