Fruits of the Poisonous Tree

20

Robert Vogel did have an alibi for the time the pictures were taken of Gail. He was at a doctor’s office, having his cigarette-corrupted lungs examined by special request of New England Wood Products’s insurance carrier, who was interested in tacking a waiver onto Vogel’s coverage.

We found this out at the end of a long, tense afternoon, spent in the offices of an extremely unhappy James Dunn, who, during the brief times he came out of his office to consult with us in an adjoining conference room, kept giving me looks that he obviously hoped would make me burst into flames.

We never saw Tom Kelly or Bob Vogel-all communications with them were handled either by phone or well out of our sight-but from Dunn’s terse reports, both of them were having a pretty good day.

As was the press. On its own merits, this case had already built up enough steam to attract over two-dozen reporters-among them two competing-network correspondents from New York, complete with camera crews-all of whom had been roving about town in packs of various sizes. However, now that something had obviously gone awry-the judge having granted an unexpected continuance in the middle of the state’s case, and Dunn sequestering himself in his aerie with all of us-everyone with a tape recorder, a note pad, or a camera was packed into the Municipal Center’s third-floor hallway.

The impression of being under siege was further enhanced by Dunn himself-driven to distraction by the cacophony of ringing phones-who finally ordered all public lines into the office disconnected, leaving only the unlisted ones, which nevertheless stayed busy enough. Outside, the muted rumble of the growing crowd burst into occasional flower whenever one of the staff battled his or her way through the door.

At last, the windows darkened by the coming of night, Dunn called Brandt, me, Todd Lefevre, and Billy Manierre into his office. He arranged himself behind a desk almost as large, polished, and bleak as his ego, and stared at us in theatrical silence.

“This continuance will extend twenty-four hours, at which point the judge will ask both sides if we need further relief. I intend to answer no. That means that you will have totally reviewed this case by then and found it to be as airtight as it should have been when I first received it. I can then present all this as a minor glitch, of no great consequence.”

He leaned forward, placing his hands flat on the glistening desktop. “That is what’s going to happen-correct, Lieutenant?”

“We’ll see,” I answered, which caused him to flush. The discovery of that severed alarm had been no minor glitch to me. It had been a crack in a structure perfect in outward appearance, neatly plastered over by a truly malevolent artist. Despite Dunn’s wishful thinking, I was sure we’d find more flaws, now that we knew to look for them. Unfortunately, I had no way of proving that to him and thereby sparing him further humiliation.

Dunn glared at me, straightened, and then addressed us all. “Get out. Todd, coordinate with them.”

“That arrogant bastard,” Brandt muttered as soon as Todd had closed the door behind us.

“Maybe,” Todd said, showing an unexpected loyalty. “But he’s got a point. He doesn’t need his own people pulling fast ones on him in mid-trial.”

“If he doesn’t like surprises, he ought to give us more than twenty-four hours,” I countered. “Now we’re going to have to review the evidence selectively. Luck’ll have to substitute for thoroughness.”

“What do you mean?” Billy asked, leading the way into the empty conference room opposite Dunn’s office.

“It means that a few key elements could swing this case one way or the other.” I began pacing up and down the length of the room as the others slowly grabbed seats and made themselves comfortable. “Given the down time I’ve had, I’ve been able to dissect this one more than most, and what I’ve found is that the most supposedly concrete evidence-the underwear, the blood on the knife, the knife nicks on the window lock, the red shirt, the Victoria’s Secret catalogue, the leaf, and even Vogel’s MO-might well be the most circumstantial, the most easily manipulated by someone who wanted to lead us by the nose. After all, it’s the kind of evidence we’re trained to look for, and that juries can get their teeth into.

“But there are other details-more supportive ones, like the clock and those photos-which were a little harder to manipulate, since they called for more than just planting something in the right place. As a result-if I’m right-those can be traced to the real rapist. It’s the window-dressing details that we need to track down.”

Tony shook his head and spoke softly. “And all in a single day.”

I turned to Todd. “What will Tom Kelly be doing during the continuance? Is twenty-four hours enough?”

He nodded. “No reason why not. He’ll probably depose Fran Gallo, the doctor who just alibied his client, Vogel’s next-door neighbor, the Green Mountains Lab people for good measure, and maybe even you, so that you can throw the oil-slick and red-shirt angles into question.”

“Great,” Tony murmured.

“’Course,” Todd continued, “he may not bother, figuring the judge or our newfound zeal will get him off the hook anyway. He’s been so cagey up to now, it’s hard to tell. But the momentum’s going his way all of a sudden. I’d bet he’s not going to trust to fate alone.”

“What’s the judge got to do with it at this point?”

Todd shrugged. “Tom Kelly clerked for the Honorable Gordon Waterston in Burlington way back when, and Waterston’s notoriously hard on women in sexual-assault cases.”

“Susan Raffner told me that last part,” Tony admitted. “So you’re the one who knocked over the apple cart. What’s the first step?” he added, looking at me.

“The pubic hairs found in Gail’s bed,” I answered. There was a stunned silence. “That’s what I meant by focusing on a few key elements-things we overlooked before. The standard tests on hair don’t give us much, especially when the samples don’t have roots, and therefore can’t be DNAed. But there are nontraditional tests they can do, including one I thought of when we found out about Vogel’s doctor visit.

“One thing you can detect in hair, if you’re looking for it, is nicotine. We all have it to a certain extent, because of smoke in the air, but smokers themselves-heavy smokers-have a lot. Since neither Gail nor I smoke, heavy nicotine in the pubic-hair samples will help point to Bob Vogel.”

“Unless there is none,”

Todd pointed out. I raised my eyebrows. “Either way, it’ll point us in some direction.”

“All right,” Brandt agreed, “I’ll send J.P. up to Waterbury with the samples. How long should it take?” he asked me.

“The test shouldn’t take more than a couple of hours. Getting it priority attention’s something else.”

Tony nodded firmly. “I’ll handle that. What else?”

“We assumed that some of the minor discrepancies between this rape and the others Vogel committed were because of a learning curve. That was a mistake. What we should have noticed was that there were too many similarities between Vogel’s third rape and Gail’s. Seeing that might’ve started us thinking of a copycat crime instead of a learning curve.

“I think we need to get the people who investigated those cases on the phone-like Jim Catone from Greenfield-and grill them, point by point.

“We also need to retrace all the physical evidence, from the red fiber on the doorjamb to the Victoria’s Secret catalogue, only not for how it lines up against Vogel, but for how it might’ve been used to frame him. For example, find out where Gail had the catalogue in the house. If it was on a coffee table, Vogel might’ve grabbed it on the way out. But if Gail had already thrown it out, then why would he have gone through her trash? Or the oil pan on Vogel’s car-why did it puncture when it did? Tyler’ll be out of town, but Kunkle’s pretty good at forensics-have him check it out more closely.”

I looked around the room, surprised and pleased at the lack of interruptions. None of them wasted time defending themselves, arguing that the case was sound and that what I was proposing was a waste of time. Not that they were converts-I knew that. But just as one set of evidence had put them on course to one conclusion, they all seemed to accept that another set might result in something different. It was an attitude I didn’t expect to be shared by many outside this room, but it was here where it counted.

I took advantage of the silence to make one last proposal: “I also think we need to call in a criminal psychologist, give him or her everything we’ve got on Gail’s case, and see how it matches what we know of Vogel’s personality.”

“Joe,” Tony finally protested, “that’s not going to do us any good in court. And if Dunn found out about it, he’d hit the ceiling.”

I sat down on the table next to him. “I know, but I want to plan ahead for once. If someone is jerking us around, I want to see if we can get a peek at what makes him tick. It’s only going to take a phone call-Megan Goss might be interested. Dunn did say he didn’t want any more surprises-this could be a way to grant his wish. Indulge me, okay?”

Tony smiled. “Indulge you? You’re not even supposed to be in the building.”

“I won’t be. I’m going to a bar.”

Simply leaving the building proved more difficult than I’d thought. The mob outside the door tightened around us, bristling with questions, microphones, and a battery of camera lights. It was a stupefying assault, and a self-defeating one, the combined noise of all the questions being loud enough to override any response.

Near the top of the main stairwell, where the crowd threatened to stall completely, I muttered, “See ya,” into Brandt’s ear and cut away in the opposite direction, where resistance was weakest. There was a momentary hesitation on the part of several reporters on the fringe, who were tempted to go after me. I waved them off and walked briskly to the far end of the hallway, hearing one last “Lieutenant Gunther?” clutch at my heels as I made my way down the narrow back stairs.

Two young men followed me. I stopped at the bottom of the stairs, just outside the selectmen’s meeting room, and turned to face them. They were from out of town, unfamiliar with the building.

“Lieutenant, why did the judge issue a continuance so abruptly?” one of them asked.

I held up my hand and smiled resignedly. “All right. But it’s been a long afternoon. Let me use the men’s room first, and then I’ll give you what I can.” I pretended to look around and then jerked my thumb at the meeting-room door, clearly marked. “They have a private one in here. I’ll be right out.”

I ducked through the double doors, turned left, and as quietly as possible opened the fire-escape door. Below me, the parking lot was empty of people. Keenly feeling the lack of a coat in my weakened and emaciated condition, I slipped outside and went down the broad metal staircase.

Moving in a fast shuffle around the less-frequented front of the building to the parking lot on the south side, I was shivering violently by the time I got to my car. Half bent over, my hand clutched to my stomach, I fumbled for the keys in my pocket, grateful that at least I hadn’t locked the doors.

Grateful, that is, until I got inside.

“Hi, Joe. Slip out the back door?”

Stan Katz sat in the passenger seat, looking smug and terribly pleased with himself. Trust him not to run with the pack.

“Get the fuck out of my car, Stan,” I said through chattering teeth.

He took the keys from my trembling hand and stuck the appropriate one into the ignition. “At least turn on the heater.”

I didn’t argue; but overcome by sudden nausea I had difficulty turning the key. The engine caught, and I tried to sit back, fighting the pain that was doubling me up.

Katz’s expression and attitude changed abruptly. “Jesus, Joe, are you okay?”

He wrestled out of his overcoat and tucked it around me, its warmth having as immediate an effect as the cold preceding it. “Give the motor more rev,” he ordered, sliding the heater control over to high. He watched me carefully. “Should I get some help?”

I shook my head. “I’ll be all right. Just give me a few minutes.”

“What the hell happened?”

“Nothing-you saw the mob. I guess it was the heat, then the cold, then the running. I’m not in too great shape yet.”

He turned the fan on high. The first hints of warmth were beginning to blow from the dash registers. “So, did you guys come up with something exculpatory on Vogel?”

I closed my eyes briefly, letting the growing warmth sink in. “Give it a rest, Stan.”

His voice rose several notches in protest. “Give it a rest? Fuck you. Did I park someone in the hospital hallway after you came out of your coma? Did I have a photographer stake out the farm so we could have shots of you limping around with Gail? No-”

“Fine, I get the point. You’re a saint.” I returned his coat, feeling much restored now that the heater had fully kicked in. “Look, let’s skip this crap. What do you want?”

“Last time we talked, I told you I wanted to turn the paper around-prove to the owners that a tabloid wouldn’t cut it in this town, but that I needed some cooperation.”

“I remember,” I said neutrally.

“Well, I’m not going to let you people read articles about your own department before publication, like you asked, but I can let you and Gail have your privacy and cut down on the titillation.”

I shifted my gaze from the darkened parking lot to his dimly lighted face, surprised at the passion in his voice. He had caught my interest.

I made a point not to show that. “So what?”

“So ask around. You’ve been out of touch the last month or so. The paper’s been hosting forums. It’s expanded the letter box to two full pages. We’ve invited guest columns about rape, and women’s rights, and sexual whiplash, and half-a-dozen other topics. I know damn well Dunn’s going wild up there right now, and that something’s about to turn this town inside out. This is my town, the Reformer’s town, and I don’t want to lose this story to all these fancy bastards from out of town.”

“We can’t give you an exclusive, Stan. That only happens in the movies. And I’m not going to give you anything right now.”

He nodded. “The headlines are common property-I can live with that. I want the inside stuff-the feature material. That’s what’s going to make my owners realize this tabloid angle is bullshit.”

I smiled in the darkness, constantly impressed by the man’s odd combination of energy and ego. Nevertheless, what he’d said had possibilities. “I’ll talk to Tony about it.”

He opened his door, letting in a wash of cold air. “That’s all I ask. So where’re you off to now?”

“Good-bye, Stanley.”

He laughed and slammed the door, walking toward the other end of the lot. Slightly off to one side, I thought I saw a quick flash of light and the sound of a door slamming, just as I had on the Wardsboro Road. Then as now, I waited for the expected roar of an engine and the ignition of a car’s headlights. But nothing happened.

I drove out of the lot, turned right onto Grove Street, and checked my rearview mirror for signs of anyone following. There were none. Of course, Vogel hadn’t known Willy and I were following him either, so many nights ago.

The parking lot of the Barrelhead Bar was as still and vacant as the wasteland it resembled. At seven in the evening, it was still far too early for Ray Saint-Jacques’s regular crowd. Nevertheless, as implied by the anemic neon beer ads in the window, it was open for business-like some time-frozen, Depression-era snapshot, taken by a long-dead artist with an eye for forlorn irony.

Ray Saint-Jacques had testified this morning as part of Dunn’s opening salvo. Never one to start a trial with all the dull, picky, supporting evidence so precious to most prosecutors, James Dunn had an almost Shakespearean flair for presentation. He knew that his jury, like most audiences, would nod off if poorly entertained and end up giving him bad reviews regardless of how many thrills he provided at the end. Ray’s damning description of Bob Vogel’s verbal self-incrimination was perfect relief from such doldrums-like the sound of distant drumbeats, it had perked the jury up and made it attentive to whatever might next appear on Dunn’s theatrical landscape. From what Todd Lefevre had told me, Ray’s had been a muted, low-key, and therefore stellar performance, since everyone in the room knew where it was intended to lead.

It had also been, from the moment Willy and I had first heard it, a crucial turning point in the case against Bob Vogel-the key that had unlocked the search warrant to his trailer and fully revealed Vogel’s guilt. As such, it was also evidence I ranked high among that deserving a second look, and was something I wanted to pursue alone, at my own pace, away from the impatience and expectations of my colleagues. For while I trusted the competence of everyone I worked with, I also knew I was the only one convinced that we’d all made a terrible blunder.

The enormous, nylon-skinned waitress was back on her corner chair; Ray was behind the bar, polishing glasses that probably hadn’t seen use all day. The rest of the place was deserted.

I approached the bar unsteadily, a purposely bleary smile on my face. “Hi, Ray.”

“What do you want?” His voice was flat, his eyes watchful, taking in my small performance and weighing it against a half-million legitimate ones he’d been privy to over the years.

I raised my eyebrows and parked myself heavily on a stool, getting my hand tangled up in the pocket of my jacket as I did so. “Colder’n a witch’s tit out there. Give me a glass of something.”

He kept polishing his glass, now gleaming in the television’s reflected rainbow of changing colors. “Where’s your coat?”

I stared at him a moment, as if wondering what he meant, and then I dropped my eyes to my jacket sleeve. “Shit. Must’ve forgotten it someplace.”

I didn’t pursue the point, or ham it up beyond that. I perched on my elbows and lost myself in the eyes of a beautiful woman on the TV screen high above the rows of bottles opposite me.

Ray let a full minute crawl by, waiting for more. I refused to play. “So what’ll it be?” he finally asked.

I dreamily returned to him and the present. “I don’t know. A beer, I guess.”

Ray came back a minute later and put a chipped mug in front of me. “Five bucks.”

Barely taking my eyes off the set, I put the money on the counter without protest. He hesitated before removing it, as if allowing me one last chance to drop the playacting.

He became more direct then, blocking my view of the television. “Why’re you here?”

I blinked at him a couple of times, surprised by his aggressiveness. Either Ray was using me as a scapegoat for the humiliation he’d suffered from Willy earlier, or he was feeling hot under the collar for some other reason.

I passed my hand over my eyes and rubbed one of my temples as if massaging a headache. “For one thing, I wanted to thank you. Most of all, I guess I just wanted a change of scenery.”

“Thank me for what?” The hostility in his voice was slightly tempered by curiosity.

“Testifying the way you did-not that it did much good-but I appreciate it anyway.” I picked up the mug and buried my nose in it, wishing it smelled less like old socks.

He stood there for a moment, his interest beginning to gain the upper hand. “I just told them what I told you guys.”

I paused to wipe my mouth with my sleeve. Not quite-what he’d said on the stand had been a lot more damning. That, in fact, was why I was here-to find out why he’d fine-tuned his story. “Yeah, well, whatever.”

Absentmindedly, he took a couple of swipes at the stained bar top with his rag. “So what happened this afternoon, anyway?”

“Gail got raped twice, that’s what… I’m not supposed to talk about it.”

The rag froze in mid-wipe. “You mean that jerk’s going to get off?”

I put the mug back down wearily. “Don’t start, okay? I heard enough already. We did the best we could-you did, too. It’s just… Shit, I don’t know.”

The emotion in his voice was more intense than it should have been, considering that he’d told us earlier he hadn’t even known Vogel’s last name. “You’re shitting me. What about knifing you? He’s got to get serious time for that, ain’t he?”

I shrugged and fed his growing anger. “Maybe not. If he’s innocent of the rape charge, he can claim we pushed him into a corner and forced him to protect himself. He’s got a real good lawyer-he could be in here next month, drinking to your health.”

The rag was wadded up in his fist. “Not fucking likely.”

I raised my eyes to his. “Why not? This is his favorite watering hole. What do you care?”

He stepped away and threw the rag into the sink in disgust. “You guys. Don’t know from shit. That bastard owes me a bundle. He never paid his tab, and he never settled his bets. There’s no way that son of a bitch is coming in here again.” He walked toward the waitress, muttering, “Fucking deadbeat,” and then pointed a nail-bitten finger at her. “Nora, you stupid bitch. There’s nobody here. Get your ass out back and do something useful, for Christ’s sake.”

She slid off her chair as before and vanished without a murmur, Ray glaring at her and shaking his head.

I put the stale beer down, the need for pretense over.

Ray, as if sensing my eyes on the back of his head, slowly turned, his expression an oddly rueful mixture of self-revelation and shock. Seasoned snitch that he was, he knew that he’d just shot himself in the foot.

“You lied to us, Ray,” I said in a clear voice.

He made a dismissive gesture and gave me a lopsided grin. “You should talk… Christ’s sake-you know he did it.”

“He never bitched about not having an alibi, did he?”

“He came in that morning in the dumps.” His voice was slightly plaintive.

“And you laid it on thick because you had a beef against the guy. You saw a chance to stick it to him.”

He scowled at me, taking the higher ground. “I don’t believe this. You’re her fucking boyfriend. Why’re you busting your nuts for this creep? He fucks with everybody he meets, for crying out loud. All I did was help get the right thing done.”

“All you did was jeopardize the whole case. We used your testimony to get a search warrant, Ray. If that warrant’s ruled invalid now because you lied to us, then everything we got as a result of it is going to be thrown out.”

He spread his arms wide and raised his eyebrows, his face incredulous. “Then don’t tell anybody. Jesus-are all you guys this stupid?”

I sat in the car outside the bar, torn between elation and dread. My goal from the start had been to find Gail’s attacker-for her sake and society’s, and perhaps also-in more primeval terms-to prove my worth to her. Now, while my intent was the same, my methods were going to shock a lot more people than just Ray Saint-Jacques.

If what I’d just discovered-and was legally bound to pass through Dunn to Tom Kelly-did contribute to a mistrial, then all I’d really done was destroy our legal case. I hadn’t actually proved Vogel’s innocence, much less someone else’s guilt. Everything we’d found in Vogel’s trailer still stood as damning evidence against him. But as I’d explained to the bartender, they could no longer be used.

There’s a whimsical legal phrase covering such a situation; tainted pieces of evidence, secured under what amounts to an illegal search, are termed “fruits of the poisonous tree.” Thinking of that now-the ironic duplicity of the image-I felt it applied to much more than just a legal sleight of hand. Its ramifications spilled over to color Gail’s and my relationship.

Of course, Ray’s story had been but one part of the affidavit used to get that warrant. If the rest held up, Dunn would still have enough to fight off Tom Kelly.

But I wasn’t betting on it-and it wasn’t going to be long before we all found out.