Playing Dead

ELEVEN

Steve walked through the door of the Fox amp; Goose at seven thirty. Mitch had to get him out of there before Claire showed. He doubted Claire would be early, but he wanted Steve gone by eight thirty.

“You started without me.” Steve slid into the chair next to him and motioned to the waitress to get him what Mitch was drinking.

“You’re late.”

“Got a lead on the Pinter case, but it didn’t pan out. Arrested one of his minions, though, practically a kid-but with two hundred counterfeited credit cards in his possession.”

“No shit.”

“Credit-card fraud is out of control, and until we get the big players like Pinter we’ll never even make a dent.” He shook his head. “Here we are, at one of Claire O’Brien’s favorite hangouts. But of course you already knew that.”

Mitch said nothing. What could he say?

“If Meg finds out about your off-duty investigation of Tom O’Brien, that’s one thing. You get a slap on the wrist. But if you’re involved with Claire, that’s a whole different ball game.”

“It’s not like that.”

“So what the fuck is it like?”

“It’s complicated.”

Steve sipped his beer. “Dammit, Bianchi, I went to bat for you today with Meg. I told her I needed you as a partner, that you are invaluable to the squad. So no more bullshit.”

“I wouldn’t put you at risk, Steve.”

“Why are you obsessed with Tom O’Brien? Just because he saved your life three months ago? Or is there something else you’re not telling me?”

Mitch didn’t want to talk about his own father railroading another innocent guy into prison. It still burned him and he hated that he came from the same gene pool as Rod Bianchi. But Steve was smart, maybe he’d see the same problems with the O’Brien conviction that Mitch saw. That while Mitch couldn’t right the wrongs committed by his father long ago, he could help another wrongfully convicted man find justice and exoneration.

“Let me lay out what I know,” Mitch said. “The fact that Oliver Maddox is dead makes it even more suspicious.” Mitch filled Steve in on Maddox looking into an appeal of O’Brien’s death sentence. “What if Maddox had real information?”

“And the real killer didn’t want it to get out?” Steve shook his head. “This is a wild-goose chase. Maddox’s death was probably an accident. Dozens of people drown in the Delta every year. Most are accidents.”

“Convenient accident,” Mitch said.

“Could have been suicide.”

“By drowning? Rare. Let’s wait until the autopsy tomorrow. And we have the meeting with the detective in Davis. But look at the facts. Maddox disappeared two days before O’Brien was moved into the general prison population. He was actively looking into the O’Brien case, had met with O’Brien at Quentin, and phoned him six times after that meeting. There was a meeting scheduled on the books for the Monday after Maddox disappeared.”

“How’d you find that? I didn’t see it in the file from Quentin.”

“It wasn’t, but when I interviewed the warden and the head guard of North Seg, I got a copy of the schedule. It wasn’t in the file because Maddox never showed up. He was already dead.”

“You’re certain it’s murder.”

Mitch nodded. “Steve, I’m sure as hell not perfect, but you know I’m a good cop. I smelled murder the minute I saw the body.”

“I’m not going to doubt your instincts, Mitch. They’ve been right on the money in the past. But this time you’re too close to it.”

“Maybe, but there’s more than Maddox being dead.”

“What? Just because O’Brien helped capture the Goethe gang, that psycho up in Montana, and a bunch of other prisoners, he’s redeemed from a double-murder charge?”

“That wasn’t what I was going to say, but now that you mention it, I think those actions say a lot about his character.”

“What it says is O’Brien isn’t a repeat offender. He killed in a crime of passion. Most spouses who off their unfaithful wives aren’t out to kill a half-dozen other people.”

“He risked himself-his freedom and his life-staying close to San Francisco to set up Goethe’s gang.”

“But he’s a dead man, Mitch. His date with the executioner is only weeks away. Maybe he wanted to do something noble to go out in a blaze of glory or whatever.” Steve shook his head in disbelief and drank some beer.

“Put that aside for now and look at the facts of his case. O’Brien was convicted solely on circumstantial evidence.”

“He had motive and opportunity,” Steve countered. “That isn’t circumstantial.”

“Bullshit. A lot of people have the motive and opportunity to kill and they don’t do it. Why use his personal weapon?”

“Crimes of passion aren’t well thought out.”

“Did you look at the crime scene photos?”

“No. Why would I have? I’m not obsessed with this case.” Steve motioned for the waitress to bring two more pints. Mitch stole a glance at his watch. 8:10. He needed to wrap this up within thirty minutes and get Steve out of here before Claire walked in and saw them talking like they were best friends. Mitch didn’t want to confirm Steve’s suspicions that his feelings for Claire went beyond his need to prove O’Brien innocent.

“The bodies were in bed. Taverton on top of Mrs. O’Brien. The killer walked in and shot them without hesitation. Without Taverton even having a chance to move or defend himself. That, to me, says cold-blooded premeditation.”

“And a betrayed husband could have planned it just like that. What if he knew about the affair for a while? Fumed over it? Then his daughter calls and she’s upset because she walked in and heard her mom in bed with a stranger. It set him off. He might have been thinking about it, maybe planning it, and now he just goes and does it.”

“No rage? No yelling and fighting?”

Steve shrugged, sipped the new pint the waitress brought. Mitch tossed a twenty and a five on the tray and thanked her.

“What I’m saying,” Mitch continued, “is that the police never investigated Chase Taverton’s life, not in any depth. He was a prosecutor. He must have racked up a long list of enemies, and to not even walk down that road-if only to check it off the damn list-seems not only irresponsible, but flat-out wrong. It’s like they saw what they wanted to see-crime of passion-arrested the husband, and tossed away the key.”

“Usually the most obvious suspect is the killer,” Steve said.

“And sometimes the obvious suspect is innocent.”

“He was convicted by a jury.”

“You know as well as I do that jury instructions and what is admissible and inadmissible in court holds a lot of sway over what the jury hears and thinks about a case.”

“I didn’t realize you were such a bleeding heart.”

“It has nothing to do with that, it has to do with due process. So yes, I think O’Brien is innocent.” It was the first time Mitch had admitted it aloud.

“Well.”

Mitch said nothing for a long moment. “We know that Oliver Maddox was digging around in the events of fifteen years ago. And he disappeared at the same time O’Brien was moved from the safer North Seg to Section B. That tells me that someone wanted O’Brien dead, and it was only a matter of time before word that he had been a cop leaked out. A couple other facts: There were three separate attacks on O’Brien at Folsom Prison the first year he was there, even when he was in a secure section of the prison. I’ve asked for the records on those attacks, but so far I’ve been stonewalled by bureaucrats who say they don’t know where they are.”

“Could be the truth.”

“O’Brien has never wavered from his version of the events. And one more thing: The court records are a mess. There’re missing documents, missing witness statements, missing evidence.”

“O’Brien had several appeals. The documents could have been misfiled or lost.”

“True. But there’s one thing that’s very interesting.”

“Shoot. You’ve piqued my interest.”

“The call to the police about shots fired wasn’t made to 911.”

“I don’t follow.”

“Someone called the Sacramento PD phone number, not 911. There’s no trace or tape on the main number. It goes to the receptionist. All 911 calls are automatically taped and located.”

Steve thought on that. “Unusual.”

“The police canvassed the neighborhood and found no one who had made the call.”

“Was any of that brought up at trial?”

“No. But the defense had to have known it. I’d think a cop like O’Brien would question it. His counsel sucked.”

“By that, do you mean corrupt or incompetent?”

“I have no idea, but there were other minor problems. The call to the station is the biggie, though, in my mind. Steve, it’s not just one thing. It’s a series of problems with this case. I couldn’t live with myself knowing I didn’t do everything I could to make sure an innocent man doesn’t die.”

Anyone can convict a guilty man; it takes a brilliant prosecutor to convict an innocent man.

The voice of Mitch’s father came back and Mitch swallowed the anger and disgust that arose every time he thought back to the files he’d found in his father’s office after he died.

Steve stared at Mitch, his dark eyes unreadable. “Okay. You’ve convinced me, not of his innocence, but that maybe there’s something here worth looking into. But I want your assurance that you’re going to be a cop first. You see Tom O’Brien, you don’t let him go.”

“Of course. In fact, I want to find him first. I’m worried when he’s in police custody he’ll end up dead. If we have him, we can protect him until we find out what Maddox had uncovered.”

“And if it doesn’t have anything to do with O’Brien?”

“I’ll live with it.”

“Good.” Steve leaned back, crossed his legs. “You know, before you came to Sac two years ago you had a reputation for being a hard-ass, but you’re a softie at heart, Mitch. Hell, you and I both know that guys like O’Brien can crack and take the whole family with them.”

“But it wasn’t a murder-suicide. It was a double homicide with the daughter just down the street.”

“O’Brien had a history,” Steve reminded Mitch. “Written up several times, probation twice.”

“For roughing up suspects.”

“And that justifies it?”

“No, but the first suspect was a child molester, and the second suspect had beaten his wife to a pulp. Kicked her with steel-toed boots. She had a miscarriage and nearly died.”

“So he’s known to snap. What’s the difference when he sees his wife in bed with another man? He snaps, has his service pistol on, shoots them.”

“Without a fight or confrontation? And he didn’t use his service weapon. It was his personal firearm. And it was left on the nightstand. And according to his report, the gun was found on his wife’s side of the bed next to an open window.”

“There were no footprints or fingerprints on or near the window,” Steve said. “He could have opened the window and made it look like an intruder. Put the gun down because he heard his daughter come in.”

Mitch was off and running now. “C’mon, Steve, don’t you think that it’s odd there were no fingerprints on the windowsill? Like it was wiped?”

“O’Brien could have easily wiped it to set up his story, or maybe his wife was one hell of a housekeeper.”

“How could O’Brien get to his gun in his night-stand-where both he and his daughter testified he kept it-without the lovers seeing him?”

“He moved it beforehand.”

“That was the prosecution’s argument.”

“It makes sense.”

“What if the killer was in the house when the wife brought in her lover? Retrieved the firearm and waited for them to get naked, then killed them?”

“O’Brien could have done the same thing. Maybe he knew about the affair, was following her, was in the house-didn’t expect his daughter to come home.”

“But he talked to Claire on the phone. While he was in the house killing her mother? He planned it all out, but didn’t give himself an alibi? Now that is stupid. You have to look at the photos. It looks like an execution.”

“The work of a cold-blooded killer,” Steve countered. “A man who can kill his wife and her lover while his daughter waits for him down the street.

“The job is still the same,” Steve continued. “We apprehend O’Brien and put him back in prison. We’re not the judge, or the jury, or the appeals court.”

“He’s out of appeals.”

“And the Western Innocence Project dumped his case, too. They must have realized there was nothing to it.”

“And Oliver Maddox, the law student working on it, is dead and has been since before the earthquake, if the autopsy goes like I think it’s going to go tomorrow,” Mitch said. He sat ramrod straight, looking at his nearly empty pint of Guinness. He’d been in front of the Office of Professional Responsibility so many times it was almost a joke. Disobeying orders or not following established protocols. He had friends in high places, though they’d only protect him for so long. But every rule he broke was because he was searching for the real truth in the cases he worked. Professional? Maybe not. Responsible? Mitch didn’t see any other option.

The truth may not have mattered to “Hang ’Em High” Rod Bianchi, but it mattered to his son.

Steve looked at his friend. “I agree, the way you laid it out I’d be interested in digging deeper. Okay, this is what I’ll do. I’ll look the other way while you play undercover neighbor with the daughter. I can’t get close to her anyway, she knows I’m a Fed. I’ve done the routine stop-bys and talked to her a couple times. I got the impression that she wouldn’t be very receptive if her father does make contact.”

“I appreciate it-”

“But-” Steve interrupted. “You can’t play the maverick. We’re in this together or not at all. I went to the mat for you with Meg. Though I’ll be damned if I can figure out your relationship with that woman. She goes ballistic when she thinks you screwed up, but then tells everyone that you’re an ace investigator, one of the best.”

He and Meg had always respected each other’s abilities. “We’ve always been friends. That was sort of the problem with our marriage-we liked each other, but you know, that’s not really the foundation a marriage needs.” He shifted uncomfortably. He’d never talked about his past relationship with Meg to anyone, especially someone from the office.

Steve nodded. “If Meg finds out that you’re that close to Claire, you’ll be on a plane to Quantico before you can pack a bag.”

“Fair enough.” Mitch nodded. “And if we do take Tom O’Brien into custody, we keep him in our custody. No locals. Federal holding.” He glanced again at his watch. 8:40.

“I think I can work that. I’ll do what I can.”

“That’s all we both can do. Thanks.”

“Now tell me the truth-why do you keep looking at your watch?”

Mitch could have lied, but after bringing Steve over to his way of thinking he needed to lay everything out on the table.

“Claire is meeting me here at nine.”

Steve nodded, as if he knew the complete truth.

“Then I’d better get the hell out of here.”

Nelia was sitting at the table in the dark when Tom walked in with fast food he’d grabbed at a nearby drive-through. He put the food down and said, “Hi.”

She just stared at him with her large eyes, darker in the dim artificial light filtering through the creases in the blinds.

He turned on a light and saw that her eyes were bloodshot. His stomach flipped. The last person he wanted to hurt was the woman who had saved his life, who believed in him.

“You’re angry because I went to Claire’s without you.”

She tilted her head but remained silent.

“You’re angry because I left in the first place.”

Nelia dipped her head in acknowledgment.

“I’m sorry.”

“No you’re not.”

He sat across from her. “I had to go. I had to see how Claire lived. I had to be near her.”

“I understand that, but we had an agreement. You lied to me.”

“I didn’t lie-”

“You planned all along to go on your own. Don’t make it worse by repeating the excuses you thought up on your way back here.”

“You’re right. But you’ve risked so much to help me. I can’t have you risk anything more.”

“That isn’t your choice, is it?”

“I couldn’t live with myself if you got in trouble-or hurt-because you helped me. Nelia, you have to understand that! I’m an escaped convict. They’re not going to play nice if they spot me. To me or anyone with me.”

“Don’t think I haven’t thought about it. But this is bigger than you and me, this is about the truth. I never knew the truth about what happened to Justin. Never! His killer was never caught. The police never even had a suspect. There were no similar crimes in the area, nothing in the state, nothing in the damn country that they could find. It was as if some phantom killer walked in, killed my baby, and disappeared. I never knew why. Why Justin? Why me?”

“Nelia-”

“Now I have the chance to find the truth for someone else.” She slammed her fist on the table. “For you. You were a cop. You know the first person they look at when a child disappears? His parents. Andrew and I were under investigation. They had to clear us before they seriously started looking at other potential suspects. For days the police looked at me as if I had killed my son. As if I had something to do with it. And Andrew. Either separately or together. They tried to get me to tell them that I knew my husband had killed Justin, implying that I was protecting Andrew. Then in that stupid good-cop/bad-cop game, a vile detective flat-out said we’d conspired to kill Justin. Why? Why would I kill him? But they didn’t care why, they figured if I’d confess they’d uncover the motive later. Maybe I was just crazy.

“Andrew and I didn’t love each other, but I never believed he could hurt Justin. But for a while, after all the questions, after Andrew’s affair became public, after the police showed me the ph-photos-” Her voice cracked and Tom wanted to wrap his arms around her, but Nelia had never talked of this. Tom doubted she’d spoken to anyone about what happened during the weeks after her son was murdered.

“I thought maybe. . and then I thought about my sister. She was babysitting for me that night. What if she had a boyfriend over? Was protecting him? What if she was part of it?” Nelia’s voice trembled. “I blamed everyone. I know Andrew didn’t kill Justin any more than I did, or Carina, or a phantom boyfriend. But when I saw-” She rubbed her face roughly, squeezed her eyes closed, and sank into the chair. Tom took her hand. She was shaking.

“The crime scene photos.” Her voice was barely a whisper, the anguish in every breath. “And.” She cleared her throat. “For a minute, I looked at Andrew. As a killer.” She opened her eyes, stared at Tom. “I knew he wasn’t. He was far from perfect, but he loved Justin with his whole heart.”

“I hate that you went through that.” Even though Tom understood it all too well.

“I was a suspect because I didn’t have an alibi,” she said. “I was working alone at my office.”

“No one believed-”

“Yes, they did. Strangers believed. People who didn’t know me. And for a while, I thought my family-”

“They didn’t think you’d killed your own child.”

She sighed, some of the pain and anger escaping. “No, but for a while they questioned just like I did. Because there were no suspects, there was no one else, and it came down to why? Why would someone randomly break into a house and steal a child and kill him? It wasn’t a pedophile, he wasn’t abused that way.” Her head fell to the side, downcast, tears streaming down her face.

Tom stood and pulled her up and into his arms, holding her tight. She clasped her arms around him, her body shaking with silent sobs.

Several minutes later, as Tom stroked her hair and murmured soothing nothings in her ear, Nelia said, “I know the pain in your heart, having someone you love think you are guilty. I believe you, Tom. I want Claire to believe you, too.”

Tom found her lips with his, kissed her, tasted the tears caught in the crevice of her lips. His hands fisted in her hair and he gently pushed her down to the bed. The love, the trust, the faith this woman had in him undid him. He didn’t deserve it, but he would protect it with everything he had, including his life.

“I love you, Nelia.”

She whispered in his ear, “You’re the only person who has ever been able to dull the pain in my heart, pain I’ve lived with for twelve years. You saved my soul, Tom. I love you.”