The Suspect

_Thirty-one

By its nature, a preliminary hearing tends to be short on narrative thread. There is no real opportunity for or tolerance of argument. In theory, the proceeding marshals and presents the evidence against a defendant in such a way that it speaks for itself. This structure, coupled with the probable-cause standard of proof, allows both sides to play a little fast and loose with witnesses and even, sometimes, with physical evidence, since no formal explanation of the relevance of the various elements of a case is required in advance.

This would probably be good for Gina when it came time to present her own alternative theories of her case-the connection of Caryn Dryden to Kelley Rusnak and to PII, the inadequate police interrogations of alternate suspects with strong motives and into Caryn's financial and personal lives, the rush to judgment on Stuart because he was the spouse-but it made it difficult to know how to deal with a prosecution witness such as Officer George Berriman of the Highway Patrol, a well-groomed, good-looking, friendly man on the sunny side of thirty.

Over Gina's continuing objections on relevance, Berriman's

testimony put into the record that Stuart had been upset when he'd been pulled over on the Friday night before Caryn's death and that he'd said he was going up to the mountains for the weekend, because otherwise he might kill his wife, with whom he just had a bad fight. There wasn't anything Gina could do. It was what it was. Not devastating, but very far from helpful. But she thought she could make a small point or at least put in a dig to Abrams.

"Officer Berriman"-she stood again in the center of the court-room-"in the course of your average working day, do you pull over many people and give them speeding tickets?"

"Sure. That's a big part of the job."

"And you've testified that Mr. Gorman was very upset when you pulled him over, is that right?" "Yes."

"Well, let me ask you this, officer. Do you run into a lot of people who are ecstatically happy that you've pulled them over to give them a speeding ticket?"

A ripple of low laughter ran through the gallery behind her as Berriman told her no.

But she barely waited to hear him say it before she all but waved him away with a curt, "No further questions." Without moving, she looked up at the bench.

The judge took the cue. "I think I hear a relevance objection from Ms. Roake. I'll let it in for whatever it's worth, which I have to say isn't much."

Buoyed by Toynbee's rebuke to Abrams, Gina went back to her table fighting to hold back any sign of smugness or confidence, but when she sat next to Stuart, she leaned over and whispered. "We're now three for three, which makes them oh for three."

"Okay, at last you've convinced me," Stuart said. "I'll cut you your check. You're hired."

Before calling his next witness, Abrams introduced as evidence the tape of the 911 call Stuart had placed after discovering Caryn in the hot tub.

Gina of course had obtained a transcript of this with her discovery documents and was familiar with the actual words, but hearing it played back in the courtroom underscored even more dramatically the absence of any sense of grief. Stuart's voice-calm, rational, detailed, matter-of-fact to a chilling degree-couldn't have sounded less like a panicked husband who'd just come home to discover his wife dead.

Abrams didn't dwell on the tape, but called his next witness, Captain Allen Marsten from the Central Police Station, the first police officer on the scene, who did his own damage dealing as he did with Stuart's attempted CPR on Caryn while she was in a state of full rigor mortis. His testimony was certainly relevant and gruesomely powerful, with him entering through the open door (in other words, Stuart hadn't started trying to resuscitate his wife until after he had called 911 and then opened the front door), easily persuading Stuart to give up on the artificial respiration, describing the contorted position into which Caryn's body had stiffened.

Particularly effective was the wrap-up, which Gina knew was a preemptive assault on what would be her only argument-that Stuart had been so overcome with emotion after he'd discovered his wife in the hot tub that he had tried to breathe life into her even though it might have been apparently hopeless.

"So, Captain Marsten," Abrams said. "After the defendant stopped with his attempt at artificial respiration, what did he do next?"

"Well, he stood up, pulled a towel over the body, and asked us if we'd like some coffee."

"Coffee?"

"Yes. He said there was a fresh pot he'd made before he discovered his wife. Sergeant Jarrett and I both told him no thanks." "Was the defendant crying or otherwise visibly upset." "No, sir."

"All right. What did he do then?"

"He told us he could use another cup, and walked into the kitchen."

"Did he look back at his wife's body at all?"

"No, sir. He just went inside and poured himself a cup of joe."

Gina stole a glance up at Toynbee just as he allowed himself a piercing gaze at Stuart. Obviously, Marsten's testimony, unadorned as it was, had made an impression on the judge. He was looking at Stuart as though he'd never seen him before.

After this strangely powerful lead-in, Abrams called Devin Juhle to the witness stand. His testimony, based to a large extent on her client's own conversation with him on that first morning, was relevant and potentially damning.

Over an hour and a half, it all came out. It began with Stuart's direct testimony-captured on tape and transcribed-starting with the divorce ultimatum, Stuart's various admissions about the troubles in the relationship, the financial ramifications of Caryn's death, and the couple's marital history, including his interviews with the neighbors who'd told him about the two domestic disturbance calls to the home. It went on with Stuart's suggestion to Juhle about about the Vicodin upstairs and the 105-degree hot tub. Then Bethany Robley and her unwavering identification of Stuart's car on the night of the event, plus the threats to her delivered on Stuart's behalf by his own daughter.

Gina objected that they couldn't tie the alleged threat to Stuart, but…

After that, Abrams backtracked to the warrant Juhle had pulled on the cabin and the havoc wreaked therein, talked about the discrepancies in the timing of the drive from Echo Lake, offered his own scenario of a more plausible late night/early morning drive from San Francisco to Rancho Cordova and back. Then Abrams fast-forwarded Juhle through to some of the details of the arrest, Stuart's apparent armed flight down to a motel in San Mateo, the loaded gun in Stuart's possession when Juhle broke in the door to make the arrest.

In all, it was exactly the kind of narrative, from a highly skilled and experienced witness, that Abrams was prohibited from delivering himself. The prosecutor didn't have to say "consciousness of guilt," a formal legal construct that sometimes could possess the power to convict. His witness's testimony eloquently delivered the message. This was the way it was supposed to work.

But remembering David's rallying cry that defense work wasn't for wimps, when Abrams turned to her after he'd finished and said, "Your witness," Gina gave Stuart, next to her, a couple of confident pats on his forearm, then briskly rose from her chair and strode to her place in the middle of the courtroom.

After a respectful nod at Toynbee, Gina then directed her attention over to Juhle, who sat relaxed in the witness box. "Inspector Juhle," she began, "your testimony about Stuart's timetable on the morning after the event was based on the discussions you taped that morning with him, isn't that correct?"

In an effort to humanize her client to the court, Gina would always try to refer to Stuart by his name, whereas the prosecution would always call him the defendant, or even simply "defendant," without the "the." These little honorific games might be silly and may or may not have ever made an actual difference in a verdict, but attorneys for both sides tended to feel that they could only ignore them at their own peril.

"… was based on the discussions you taped that morning with him, isn't that correct?"

"Yes, it is."

"He told you he left his cabin at Echo Lake at around two a.m., isn't that right?"

"He actually said it was a little before two."

"Ah, a little before two, thank you. Now would you please tell the court how you came into possession of the receipt from the gas station in Rancho Cordova indicating that Stuart pumped gas there at four fifteen a.m.?"

"You gave it to me."

"So I did," Gina said. She thought the point would be clear enough to the judge. As Stuart's lawyer, she wasn't about to hand any evidence over to the police if she thought it pointed to his guilt. "And did you have occasion to discuss with Stuart the discrepancy in time that you brought up in your answer to Mr. Abrams?"

"Yes, I did. I asked him if anything had held him up on the drive down from his cabin that could account for the extra time. And he said no."

"Did he elaborate beyond that?"

"Yes. In a later statement, after he was in jail, he said he must have been wrong with his initial guess of when he left."

"In other words, his earlier statement about his timing was an estimate. Not, as you testified earlier, definite?"

"Objection, Your Honor. Calls for conclusion."

It did, and Gina knew it, but she didn't care. Toynbee sustained the objection, but she went right on. She knew that there was precious little she could do about Stuart's admissions that he and Caryn weren't getting along, or about the kind of money he stood to come into upon her death. And she'd deal with the neighbors and Bethany Robley's testimonies when they were on the stand. But she knew that the entire consciousness of guilt edifice that Abrams and Juhle had so carefully constructed, and that had made Juhle's testimony appear so formidable, was largely built on sand. And she intended to kick the foundations out from under it.

"Inspector Juhle, on the morning of Stuart's eventual arrest, did you have occasion to see him at all?"

"I did. At his house."

"Did you go over there to serve your warrant for his arrest?" "No. We didn't have the warrant yet."

"You didn't have the warrant yet. This was the day the warrant was issued, was it not?"

"Yes."

"But you didn't have it yet. Then why did you go over there?"

Juhle shifted in the chair, his first real sign of nerves. "You called me on your client's behalf, and asked me to come over to look at some e-mails he'd apparently received."

"E-mails? What was the nature of these e-mails?"

"They were apparently threats to your client." "What kind of threats?" "Death threats." "From whom?"

"I don't know. Someone who signed himself 'Thou Shalt Not Kill.' "

"How many of these e-mails were there?"

"Three."

"And when did my client receive the last one?"

"On the Friday before… before. The Friday before," he said.

"Before the event, you mean?" Gina wasn't going to refer to Caryn's death as a murder since the prosecution had been unable to prove that it was.

Juhle clearly hated this "event" business. "Yes. Before the killing."

"So two days before the event in question, Stuart had received an e-mail threatening him with death? Is that correct?"

"That's what he said. It's what it looked like."

"And what did you do with this information, Inspector?"

"I didn't do anything. I thought it likely that your client had sent it to himself."

"And the other ones as well?"

"Yes."

"Including the one during the week he was wilderness backpacking with a California assemblyman and another friend in the Bitter-root Mountains?"

Juhle shrugged. "He could have had anyone send it to him."

"True," Gina admitted. "But again, Inspector, this was possibly exonerating evidence in this matter, just like the credit card receipt from Rancho Cordova, that Stuart voluntarily shared with you, isn't that right?"

"For what it was worth," Juhle replied, "which wasn't much." "Move to strike, Your Honor," Gina said. "Nonresponsive." "Sustained."

"Just yes or no, please, Inspector," Gina added. "Spare us the editorializing."

Abrams was on his feet. "Your Honor…!"

"Now hold on, both of you!" Toynbee said. "We're not doing this. You both know how to ask questions and make objections, and you'll do it from now on. Clear?"

Gina bit back her reply-that nothing Stuart had given to Juhle appeared to have any worth to him because the inspector had already made up his mind ahead of the evidence. But she didn't want to get into a pissing contest, not when she had a better way to bring him down. "Inspector, while you were with Stuart on this same morning, the day of his arrest, did you inform him that he was a suspect?"

Juhle broke a tolerant smile. "He already knew that."

"He did. How? Did you tell him?"

"I assumed he'd read the papers. He'd hired a lawyer."

"All right." Again, Gina wasn't going to argue the merits, though they were on her side. She had Juhle without them. "And so, because Stuart was a suspect, you ordered him not to leave the city, to stay in your jurisdiction, isn't that correct?"

The first signs of anger coming off him like tiny sparks, Juhle flicked a look at Abrams before he came back to Gina. "No, that's not correct. We hadn't decided to arrest him yet."

"So Stuart was an unconstrained citizen, free to go where he liked?"

"Technically."

"Not just technically, Inspector. Absolutely. He could have taken a plane to another country and not been disobeying any order of yours, isn't that true?"

Juhle took a while to answer. Finally, he got it out. "I suppose so."

"You suppose so. And do you also suppose, Inspector, that Stuart was fleeing when he eventually did hear about the arrest warrant?"

"I don't know about that."

"You don't?"

"But I assumed so. I went back to his house to pick him up on the warrant and found open and mostly empty dresser drawers and discovered half a box of ammunition out on his desk. I made the assumption he'd armed himself, which turned out to be true. He also snuck out of his house and didn't respond to calls to turn himself in when we did get the warrant."

"Ah yes, the famous 'armed and dangerous' we've heard so much about. Isn't it true, Inspector, that Stuart legally owned the weapon you recovered from him?"

"Yes. It was his gun."

"And when you broke into his room at the motel in San Mateo, did you see this gun?"

"It was on the end table next to his bed."

"In other words, in plain sight? In other words, it wasn't a concealed weapon, was it?" "Not at that time, no."

"To your knowledge, did he at any time carry it concealed on his person?"

"No."

"And you've just finished telling us that he had received repeated threats on his life. True?"

"Yes."

"All right. When you broke in, did he reach or lunge for the gun?"

"There were three men pointing guns at him, yelling, 'Don't move!' He didn't move."

"No, he didn't." Gina turned and quickly walked back to her table, ostensibly for a sip of water. In fact, she didn't want her aggressiveness to get the better of her and she needed a little time to frame her last few questions from this key witness. When she was back in her place, the calm tones of her voice came as a bit of a shock even to her. "Inspector Juhle, to recap. Stuart did not know he was a suspect in this event. There was no warrant issued for his arrest when he left the city to interview some people on his own in connection with this event…"

Behind her, she heard the scrape of Abrams' chair, and the objection. "Calls for a narrative, Your Honor, and assumes facts not in evidence."

Toynbee sustained the objection, as she knew he would, but at least she'd put the reason for Stuart's trip down the Peninsula into the judge's consciousness, and that had been her intention.

Juhle saw his one shot and took it. "And of course, he stole license plates from another car and put them on the truck he was driving."

This, Gina knew, had been just another flat-out mistake on Stuart's part. Of course, Stuart had correctly suspected that there'd be a warrant out for his arrest shortly, and had developed the strategy to avoid detection and identification. But she wasn't here to argue that point-Toynbee would have to factor it in and draw his own conclusion.

Gina pasted on a tolerant smile, kept any rise out of her voice. "Yes, he did, Inspector. Would it be fair to say that this case has attracted about as much media attention as any case in recent memory?"

"It has had some."

"Well, you know, don't you, Inspector, that the press has been hounding Stuart since the day of his wife's murder?" "I don't know about 'hounding.' "

"Well, how about following around with cameras and microphones in groups of five and six every time he walked out his front door? You know they've been doing that, Inspector, because you've seen it, and because we've complained about it to the Police Department."

"I'm aware you've made those allegations."

"Could it be, Inspector, that Stuart didn't want to have his truck followed by an aggressive pack of reporters who didn't leave him alone?" "Objection. Speculative."

"Well, Your Honor," Gina said. "Mr. Abrams wants you to draw one conclusion about this license-plate business, but I'd like to suggest that there is a far more sensible one obvious to anyone who knows the facts."

"What's sauce for the goose, Mr. Abrams. I'll let it in for what it's worth," Toynbee said. "Which once again, Ms. Roake, isn't much. Let's move on."

"Now lastly, Inspector, and still on the subject of Stuart's alleged flight to avoid arrest. Can you please tell the court how you came to learn of Stuart's presence at the Hollywood Motel in San Mateo?"

This was going to be bad, and Juhle knew it. "I traced a call made from a cell phone and made its location."

"And what was the nature of that call, Inspector?"

Juhle, hamstrung, couldn't bring himself to describe it. Behind Gina, she was aware that the entire courtroom was still, hanging on Juhle's response. But it wasn't forthcoming. After a long moment, Gina broke into the silence. "Isn't it true, Inspector," she asked in her gentlest voice, "that that call to you was made by Stuart Gorman's attorney, who had heard about the arrest warrant and wanted to arrange her client's surrender the next morning at ten o'clock? And that you agreed to accept such a surrender?"

Juhle's eyes kept flashing between Abrams and Gina. Finally, Judge Toynbee leaned over from the bench and addressed him directly. "We're going to need a yes or no, out loud, Inspector."

"All right, sorry, Your Honor." Juhle brought himself back to Gina. It still took him another few seconds until he finally mumbled it out, just audibly. "Yes. But you and I both know, Counselor, that a lawyer is supposed to surrender a wanted client immediately. And just because I told you I'd be around if your client decided to come in later didn't for a second mean that I was going to stop looking for him. This was a murder warrant, not an invitation to drop by the Hall of Justice."

Gina felt she could allow him the little rant. She ran through the notes she'd been balancing in her mind. Stuart's alleged consciousness of guilt was based on knowing that he was wanted and acting on that assumption by arming himself, carrying a concealed weapon, and his flight from prosecution. Satisfied that she'd touched all the bases, she now made a small bow to her witness. "Thank you, Inspector. No further questions."

The short recess was over almost before it had begun. Stuart didn't even leave the defense table, but asked Gina if he could borrow a pen and one of her yellow legal pads. When she got back from her bathroom break, he didn't look up immediately, but continued until he got to a good stopping place.

"What are you doing?" she asked.

"Writing a few notes. I got an idea."

"I'll take anything you've got."

"From where I'm sitting, you don't need any help. I'm almost starting to feel like we're going to beat this thing." He saw Gina try to hide the grimace. "You don't think so?"

"I hope so," Gina said. She half-turned to make sure no one was hovering near them, within listening distance behind the bar rail. Coming back to him, she spoke sotto voce. "I think we're all right up to now, but just about everything they've talked about so far, even Juhle, is just interpretation of facts, not the facts themselves."

"No. You beat him on that one."

"Not really, Stuart. Maybe I did get Toynbee to see another alternative and plausible explanation for the timing. And consciousness of guilt isn't flying too high either. That, unfortunately, leaves guilt itself. And that's where Bethany Robley comes in." But Gina didn't want to entirely deflate Stuart's newfound hopes. It was surely true that she'd stymied the prosecution's efforts up to now, and if Bethany Robley was like the other witnesses so far, then Gina might allow herself some hope about the results of this hearing, but not until then. Meanwhile, they had to get through Bethany. Gina put on a false face. "But I've got a plan that might do some good, so we'll see. Meanwhile"-she pointed to the legal pad in front of him-"what's your idea?"

He was covering the page with his hands. Casually, but definitely. "Nothing, really. It's not about this, anyway, I mean us here, what we're doing now. It's just a few random thoughts."

"Well, if you get so you'd let somebody read them, I'd be interested."

"You don't have to say that, you know." He indicated the pages. "This is just for me."

"Not for your readers?"

"Well, them, too." He paused. "I mean, there's the people who read me, but then there's the people who surround me in my life. And traditionally, those people aren't really into what I write. It's just not… it just wasn't that important." He broke a tentative grin. "Or relevant, as you lawyers would say. It wasn't that relevant to them."

Gina said, "You mean her. Caryn."

Stuart smiled, looked away, let out a breath. "I got used to it." She was silent for a beat. "How about if I really would like to read it? If I just like the way you write."

"Well." He drew another breath. "That might be nice."

Bethany Robley, looking terrified and sleep lagged from her days of insomnia, came up to the bar rail down the center aisle on her mother's arm, though her very large mother didn't seem a logical choice to be steadying her daughter, since she herself was walking with the aid of a cane. As she passed into the courtroom proper, Mrs. Robley let go of Bethany's arm, watched her walk on for a couple of steps, then suddenly lurched to her right, just behind Gina's back, and got ahold of Stuart's jumpsuit at the shoulder, pulling him back in his chair toward her. "How dare you threaten my daughter! How dare you!" She brought up the cane with her free hand and swung it overhand, Stuart taking the hit mostly on the arm as it glanced off the side of his head.

Immediately Toynbee was gaveling the courtroom to order, yelling for the bailiffs. Some of the media people in the front row were up and clearing out of the area, while Gina turned one way to see what was happening behind her then the other to get out of her chair and somehow try to restrain this crazy woman. Stuart, stunned as the rest of the people in the room, turned in shocked surprise. "Clair, wait!"

"Mom!" Bethany yelled. "Stop!"

But Clair Robley wasn't waiting or stopping. Swearing violently at Stuart now, in a mad rage, she pulled him off his chair and all the way back to the rail and repeatedly swung at his head with the cane as he tried to cover and defend himself. She was still swinging when the bailiff who'd been guarding the entrance got his arms around her and managed to hold her relatively still, which allowed the other two bailiffs time to get in range to restrain her further.

It was all over within thirty or forty seconds. Mrs. Robley still held by the three big guards, a crying, near-hysterical Bethany now back beyond the bar rail in the first row of the gallery, trying to get to her mother. Gina was helping Stuart get up from the floor. Once to his feet, he righted his chair himself, collapsing down into it. There was a lot of blood coming out of his forehead at the hairline.

The judge kept slamming his gavel. "Order," he kept saying. "Order. Order."