Vengeance: Mystery Writers of America Presents

THE FOURTEENTH JUROR

BY TWIST PHELAN

The two detectives stood in the reception area of the judge’s chambers on the fifth floor of the county courthouse. Ebanks made the introductions.

“We have an appointment to see the judge,” he said.

The secretary smiled at them. She was a discreetly elegant woman with assisted blond hair and not too much pink lipstick.

“His Honor is expecting you,” she said. “He shouldn’t be too much longer. He’s just finishing up a JNOV hearing.”

Ebanks had to cough.

“May I get you something to drink?” the secretary asked.

Ebanks cleared his throat. “No, thank you,” he said.

“Coffee would be good,” Martinez said.

Ebanks was pinning his hopes on Martinez. The guy was no genius, but once he got an idea in his head, he was relentless. If Ebanks could get him pointed in the right direction on this case, the rookie’s doggedness would pay off even after Ebanks retired next month.

Ebanks wasn’t looking forward to turning in his shield. Some retired cops spent their days fishing or golfing or motor-homing to Arizona in the winter, but Ebanks didn’t own a motor home or play golf. He did like to fish, but he wouldn’t be getting up to the lake much. He’d be staying put in the house he’d grown up in. He and his wife lived there now.

The two cops sat down on a long sofa. An abstract painting hung on the wall facing them, its vivid reds and bright oranges warming the room. Martinez ran a hand along the plump leather arm of the sofa. “Nice.”

Ebanks glanced around. Smooth parquetry floors gleamed with wax. The government-issue fluorescent overhead fixtures had been replaced with incandescent models. Magazines — current issues only — were lined up equidistant from the edges of the cherry coffee table. The lone plant, a ficus tree, had been trimmed into perfect symmetry, its leaves polished to a glossy green.

“Hmmm,” he said. The rookie was observant, but he usually drew the wrong conclusions.

“How’s Sheila?” Martinez said.

“Sonia,” Ebanks said. He didn’t really mind the mistake. After four years, hardly anyone on the force bothered to ask anymore. “Better,” he lied.

Just then, the door behind the secretary’s desk opened. A woman and a man wearing suits walked out. The woman smoldered with unhappiness. The man bore the dazed grin of a lottery winner.

The justice system at work, Ebanks thought.

THE JUDGE STOOD to greet them as they entered his chambers. His lean, intense face was incised with deep vertical grooves. His body was long and angular. Metal-rimmed glasses were perched on his nose and disapproval was apparent in the set of his mouth, like the preacher in the Pentecostal church Ebanks had attended as a kid.

“Sorry to keep you men waiting,” the judge said. “JNOVs are never easy. But it’s something that has to be done.”

“JNOV?” Martinez said. “What’s that anyway?”

The judge shook his head solemnly. “Of course — you’re from the criminal side. I wish I could do more work over there, but I go only when they need me to fill in. JNOV stands for Latin words that mean ‘judgment notwithstanding the verdict.’ If a jury comes back with a decision that’s contrary to the evidence, the judge has a responsibility to reverse it. The two people you saw leaving were a plaintiff’s attorney, who just lost a two-million-dollar punitive-damage award, and a very relieved defense counsel.”

Ebanks massaged the bridge of his nose. Sonia hadn’t done well last night. He’d barely gotten two hours’ sleep.

“Too bad crim court judges can’t do that,” Martinez said. “Some of these juries come back with the most half-ass —” He stopped himself, cheeks reddening.

The judge smoothly stepped in. “What you’re saying is that jurors are often dazzled by attorney antics or irrelevant issues and so they don’t focus on the evidence.”

“Yeah,” Martinez said gratefully.

“As long as the Constitution says ‘jury of our peers,’ that’s who decides our cases,” the judge said, “but my fundamental duty is to see that justice is done. That female lawyer you saw ran rings around the defendant’s man; she bewitched the jury with her short skirts and PowerPoint closing argument. I can’t let that kind of thing stand. It’s my duty as a judge, in civil court at least. It’s my responsibility.”

Ebanks noted the confident righteousness in the judge’s baritone voice. He looked around the office. The room was large enough to hold not only the judge’s desk and leather swivel chair but four guest chairs and a loveseat. The judge indicated they should take a seat in the guest chairs. He chose the leather swivel one.

There was a tray of dry fly-tying tools on the credenza, with hooks, thread, hackle pliers and guards, scissors, whip finishers, and a vise all lined up in a precise row alongside small containers of feathers and what looked to Ebanks like white goat body hair, usually used for wings. Ebanks preferred Swiss straw.

The photos on the wall behind the desk showed various images of the judge: proudly displaying a shoulders-wide trout; standing beside his partners — all wearing dark suits and rep ties — in the law firm he’d headed before ascending to the bench; and sitting stiffly with his wife in a room furnished in Modern Hunting Lodge (log timbers, antler chandelier, Black Watch plaid on the chairs).

The mountain range visible through the window in the last photo told Ebanks the house was in the new development on the north shore of the lake. The environmentalists had screamed, but high-priced lawyering had won the day. A small gated community of million-dollar homes had been built in the remote area. Ebanks had once had a place near the lake, a decades-old A-frame.

He used to fish the lake in a sweet little eighteen-footer. Sometimes Sonia went with him. She’d pack thick sandwiches and iced tea in the cooler, and she’d bring a book. Wearing her floppy sun hat, she was content to read while he dropped his line. He’d sold the A-frame, his boat, and most of his gear when Sonia couldn’t go with him anymore. All he had left from those times was the nice Sage fly rod Sonia had given him one birthday.

Ebanks studied the photo of the judge at his lake house. He noted the judge’s blond wife, the modern painting over the fireplace, the polished wood floors.

Class, Martinez would say.

Ebanks knew there was something else. The decor of the judge’s chambers matched the interior of his house. The shade of blond on the judge’s wife was nearly identical to the color of his secretary’s hair. The coffee table was cherry. The flowers in the vases were all trimmed to the same height and were the same shade as the red accent pillows.

His Honor was a man who made sure everything was in order. Ebanks understood that.

The judge regarded the two detectives, his gaze direct. “How can I help you gentlemen?”

“We need to ask you a few questions about the Dolan case,” Martinez said.

UNDER THE SPEEDY Trial Act, a criminal defendant has the right to go to trial within seventy days of his indictment or his initial court appearance, whichever comes first. If the trial doesn’t begin within that period, the charges are dismissed.

Overworked defense attorneys usually ask for, and are readily given, extensions. But occasionally the system logjams, with too many trials and not enough judges to hear them. When that happens, the presiding judge requests that the civil bench jurists assist their criminal colleagues. Civil proceedings are delayed while judges used to hearing securities-fraud claims and divorces preside over robbery and assault trials instead.

This judge had been drafted for such a criminal proceeding two weeks ago. Kenny Dolan was charged with second-degree murder for allegedly stabbing his wife during a domestic dispute. The case had gotten some pretrial coverage in the local press — Dolan was a catcher on the resident minor league team with a real chance of moving up to the big leagues.

The evidence of Dolan’s guilt seemed insurmountable — his fingerprints on the knife, blood spatter on his shoes, his 911 call that was more a confession than a plea for help — but in the middle of the trial, it was revealed that one of the cops assigned to the investigation, an old bull named Borosovsky, had been convicted of planting evidence in another case. Despite a vigorous closing by the prosecutor and absolutely no indication of police misconduct in Dolan’s case, the taint couldn’t be eradicated in some jurors’ minds. After four days of deliberations, the jury had hung, nine to three in favor of conviction.

“Speaking off the record, I believe Mr. Dolan was guilty.” The judge made a face. “Never underestimate the power of celebrity, no matter how minor.”

“Too bad you couldn’t’ve done one of those JN-whatevers,” Martinez said.

“I assure you, I would have entered the order in a heartbeat,” the judge said.

“The way it turned out …” Ebanks said.

“Justice was done,” the judge said briskly.

After the jury failed to reach a verdict, the judge had dismissed them and concluded the trial. During his posttrial press conference, the prosecutor vowed to retry Dolan. He’d wanted Dolan returned to jail pending the filing of new charges. But the baseball player’s lawyer had argued that his client should be released on bond, and the judge had agreed. It all became moot two days later when Dolan was discovered dead at his lake house. The coroner hadn’t released his final report yet, but the blogosphere had reported the furnace in Dolan’s house had been leaking carbon monoxide.

Ebanks looked over at the tray of fly-tying paraphernalia. The judge noticed.

“Do you fish, Detective?”

“Not so much anymore,” Ebanks said.

“How can you live without it? I get up to the lake every weekend. You should’ve seen the rainbow I caught the day after the Dolan trial — it was at least a foot long.”

“Hmmm,” Ebanks said. “So you tie your own flies?”

“I do.” The judge held up his finger to display a Band-Aid. “Although it has its hazards.”

“Like everything else,” Ebanks said. He checked his watch. “You know, we’re not focusing on Kenny Dolan right now.”

“I don’t understand,” the judge said.

Ebanks nodded at Martinez. The rookie said, “One of the trial jurors was killed.”

“Oh?” the judge said. “Which one?”

Martinez looked toward Ebanks again, and the older detective nodded once more.

Martinez consulted his notebook.

“Eric Shadid. He didn’t even make it to the hospital. The car that hit him was going pretty fast. Witnesses said it aimed right for him, didn’t brake, and bam!”

The judge furrowed his brow in concentration. “Mr. Shadid was the foreman, wasn’t he?”

“Right,” Martinez said.

“When did this happen?” the judge said. “Why didn’t I hear about it?”

“A day after the trial ended,” Ebanks said. “It didn’t make the news.”

“I would have missed it anyway. I’m always at the lake house after a trial.” He grimaced. “This time it was a damn good thing I got up there so fast. There was a burst pipe in the laundry room. I fixed it myself — a foot of half-inch pipe, some solder, a propane torch, and about two hours of labor.” He turned to Martinez. “So you think this hit-and-run is related to the Dolan trial?”

“Maybe,” Martinez said. “At first we just figured Shadid was in the wrong place at the wrong time.”

“What changed your mind?”

Martinez looked embarrassed. “That magazine writer called.”

“Writer?” the judge said.

“Leonard Lunney. He’s one of those true-crime guys. Said he was writing about the Dolan trial. He got a copy of the jury list and started calling ’em to see if they’d talk. When he found out Shadid thought Dolan was innocent from the get-go and then Shadid’s killed in that hit-and-run …”

“Journalists are rightly skeptical of coincidence,” the judge said.

“Police too,” Ebanks said.

“I’ve read some of Mr. Lunney’s pieces in Vanity Fair,” the judge said. “It’s his job to spin the suspicious into the sensational.”

“According to Lunney, the first vote was eleven to one to convict,” Martinez said. “Shadid was the holdout. He ended up getting two other jurors to go along with him.”

“I’ve seen some heated deliberations,” the judge said. “That one was among the most acrimonious. I could hear the shouting in my chambers. The bailiff had to break up a scuffle at one point.”

“You catch what the fight was about?” Martinez said.

“From what I heard, a juror in favor of conviction accused Mr. Shadid of being blinded by Dolan’s status as an athlete.” The judge spread his hands. “Of course you’ll talk to the rest of the panel.”

Ebanks frowned. “You’re thinking maybe a juror who argued with Shadid wanted to kill him because Shadid thought Dolan was innocent?”

The judge looked at Ebanks over the top of his glasses. “Remember Jack Ruby? People have done worse in the name of justice, especially when they have some tangential involvement in the situation.”

“The thing is, we checked into that,” Martinez said. “All the jurors had alibis for when the car hit Shadid.”

“So if a juror isn’t a suspect, I’m not sure how I can help you,” the judge said.

“We’d like to ask you about Mrs. Dolan’s family,” Martinez said. “Specifically, her brothers.”

THE PROSECUTOR, AS usual, had made a point of extolling the victim’s virtues at trial. Tina Lucchese Dolan was a loving wife who supported her husband’s baseball career, cheerfully moving from town to town as he worked his way up from Class-A to Double-A to Triple-A ball. She sang at church and did volunteer work.

Tina’s only blemish was her maiden name. The Luccheses were a second-tier New Jersey crime family. Dolan’s lawyers, trying to create reasonable doubt, made some noise about Tina’s death being payback for a sanitation-contract dispute, but that’s all it was — noise. They didn’t have any evidence to back up their claims, only innuendo, largely in the form of Tina’s two brothers, who attended the trial every day. They sat in the first row behind the defense table and glared daggers at Kenny Dolan’s back, tough guys stuffed like sausages into shiny suits. No one would sit next to them.

The judge blinked. “You think a Lucchese killed Mr. Shadid?”

“We talked to the Jersey police. The Luccheses really are pretty Old World when it comes to justice.” Martinez leaned back in his chair and hooked his thumbs behind his belt. “Make that more like Old Testament. You should see their rap sheets.”

“I’m not surprised,” the judge said.

“Shadid didn’t exactly keep his views to himself,” Martinez said. “Right after the trial he told a blogger the police had planted evidence to frame Dolan. So when the prosecutor said he was going to retry Dolan, we think maybe the Luccheses killed Shadid.”

A hung jury didn’t mean a defendant walked. The prosecutor could try the defendant again, either immediately or after collecting more evidence, as long as the statute of limitations hadn’t run out.

“But why now?” the judge said. “The trial’s over. Mr. Shadid won’t be a member of the new panel.”

“To send a message to the next jury,” Martinez said.

“You’re saying the Luccheses killed Mr. Shadid to intimidate prospective jurors into voting for conviction at the second trial?” The judge steepled his fingers. “I don’t know. Sounds a little farfetched to me,” he said.

“Fits the Luccheses’ m.o.,” Martinez said. “Besides, we’re kinda running out of suspects. We’ve talked to Shadid’s family, friends, business associates, enemies.” He ticked them off on his fingers. “Everybody’s got an alibi.”

“What about Dolan?” the judge said.

“Dolan was already dead,” Ebanks said.

“No,” the judge said. “The Luccheses. If they were going to kill someone, I would have thought it’d be Dolan.”

Police work was a lot like fishing. You stuck your best fly on your hook and waited for the hungry trout to come along and strike. The fish thinks he’s the predator, but he’s really the prey. Sometimes an even bigger fish comes along and snags your catch right off the hook before you can reel it in.

“Funny you should say that,” Ebanks said. “Because we just got the word that Dolan’s death was no accident.”

The judge looked surprised. Martinez looked confused.

At the press scrum on the courthouse steps, Dolan had expressed his faith in the justice system, refused to answer any questions, and announced he was heading for his lake house to chill. He then drove off in his black SUV.

When he didn’t show for a meeting the next day, his lawyer was annoyed. Later that afternoon, when he couldn’t reach Dolan by cell phone, the lawyer got worried. The next day, the lawyer called the cops. Dolan’s body was found in his bed. He had died of asphyxiation.

“The furnace at the house didn’t malfunction,” Ebanks said. “Someone tampered with the heat exchanger and disabled the CO detectors. Dolan was murdered.”

Now Martinez looked totally stunned. Ebanks shot him a look, and the rookie recovered his poker face.

After a trout bites, you have to set your hook. You can’t allow any slack in your line, but you have to make sure not to pull too hard. Otherwise the fish can throw the hook.

“Let’s talk some more about Tina’s brothers,” Ebanks said to the judge.

He asked a few questions, then let Martinez take over. The rookie led the judge through his prepared queries on how the Lucchese boys had behaved during the trial. Ebanks paid little attention to the questions or the answers. He spent the time reminiscing about past trips to the lake. Romance novels and cookbooks — that was what Sonia liked to read. He wondered where her sun hat was now.

After five minutes or so, Martinez closed his notebook.

The judge said, “Do you have any other suspects?”

Ebanks said, “We’ll be working hard on that.”

“I don’t pretend to know your job …” The judge hesitated.

“It’s okay,” Ebanks said. “What’s on your mind?”

“Well,” the judge said. “Have you considered Mrs. Batista?”

“The pitcher’s wife?” Martinez said. “Why would —”

Ebanks broke in. “What’s your theory?”

CRIMINAL DEFENSE ATTORNEYS know it isn’t enough to say their clients didn’t do it. The jury always wants an alternative suspect for the crime, and if one suspect is good, two are better. In addition to offering the Luccheses’ mob enemies, the Dolan defense team served up Nikki Batista, wife of Dolan’s best friend on the team.

“The evidence will show Kenny and Nikki Batista were having an affair,” Dolan’s attorney announced in his opening. The “evidence” included several months of late-night phone calls and lunch meetings at out-of-the-way restaurants, but no hotel bills or photos of the tabloid variety. Claiming Dolan broke off the affair because he’d come to realize how much he loved his wife, the defense trotted out the “hell hath no fury/scorned woman” maxim and asserted that Mrs. Batista had no alibi for the time of the murder.

The prosecutor called a tearful Nikki to the stand to deny the affair, and to explain that the clandestine meetings and phone calls between Dolan and Nikki were to organize a surprise birthday party for Tina Dolan. As for the night of Tina’s murder, Nikki said she’d driven up to the lake area to visit a friend, who turned out not be home. A PhotoCop shot dug up by the prosecution proved that she’d been doing fifteen over the limit while Tina was being killed.

“I didn’t believe that birthday-party story,” the judge said. “I think Dolan was having an affair with Nikki Batista. With his wife gone, Nikki expected to be the next Mrs. Dolan, but Dolan dumped her. Hell indeed hath no fury. Mrs. Batista knew Dolan was going to his lake house. She went there too, and rigged his death.”

“There’s only one problem with pointing the finger at Mrs. Batista,” Ebanks said. “We did the background investigation for the prosecutor. Turns out she was having an affair, but not with Kenny Dolan. Apparently third basemen are more her type. They were in bed together fifty miles north. That explains the PhotoCop shot.”

The judge slowly shook his head. “I must say, my brethren on the criminal bench have a challenging time sorting the sinners from the innocents.”

Ebanks slapped the tops of his thighs. “Well, that’s it, I guess. Sorry to have taken up so much of your time.”

“I’m always happy to do whatever I can in pursuit of justice,” the judge said. “Let me ask you this: What about the forensics? Tire tracks, paint transfer …” The judge permitted himself a smile. “My wife is a fan of those television shows,” he said. “I suppose some of it has rubbed off.”

Ebanks imagined the judge and his pretty blond wife in a large, tastefully decorated room, sitting in nice chairs like the ones he and Martinez were sitting in, watching TV. Sonia and he used to watch old movies every Friday night. He’d make popcorn and they’d curl up on the old plaid couch together. Sonia couldn’t watch TV anymore. Fast-changing images triggered the seizures.

“Too bad we don’t have a lab like the one on CSI,” Martinez said. “But we need a lot more big-city crime before that happens. Right now, we have to process the crime scenes ourselves. If we want something tested for prints or DNA, we ship it off to the FBI.”

“We better get going,” Ebanks said. He stood, and Martinez followed his lead. The judge pushed his long frame out of the swivel chair.

While his partner shook hands with the judge, Ebanks bent over to tie his shoe. In the wastebasket beside the tray of flies, a partially constructed Parachute Adams lay on top of a piece of Kleenex. Both the fly and the Kleenex were stained with what looked like blood.

Lucky break, Ebanks thought. He hadn’t expected to find something literally soaked with DNA.

Martinez and the judge had walked over to the wall, where the judge was pointing to one of the photos. After making sure they weren’t paying attention, Ebanks reached into the wastebasket and scooped up the bloody fly and the Kleenex. He slipped them into his pocket and straightened up.

The judge showed them into the reception area. The secretary was on the phone. She waved and smiled at them.

“Let’s catch some lunch,” Ebanks said, “but first I want to ask her something.”

The secretary finished her call. “May I help you?” she said.

“About those JNOVs,” Ebanks said. “Aren’t they usually kinda rare?”

The secretary nodded. “They are, except for with this judge. You could almost say he’s famous for it — some of the lawyers call him the ‘thirteenth juror.’ He takes his work very seriously. He always says if the jurors don’t do justice, it’s up to him.”

“The thirteenth juror,” Ebanks repeated. “Hmmm.”

He and Martinez got into the elevator. As the mahogany-paneled box descended, Ebanks said, “Well, that was a bust. We didn’t learn anything we didn’t already know about Shadid.”

“How’d you know about Dolan being a homicide?” Martinez said.

“I got a text when we were waiting for the judge,” Ebanks said. “I thought you did too.”

“Nope. But hey, no problemo.” A few seconds later, Martinez said, “You know, that got me thinking about some of the stuff the judge said.”

Ebanks kept his eyes on the numbers over the door. They lit up as the car passed the floors. “Such as?”

“Such as when you told him Dolan was murdered, he was pretty quick to finger Mrs. Batista, and when that didn’t pan out, he tried to hand us the Luccheses.”

Ebanks shrugged. “You heard him. He was just playing at CSI or Law & Order.”

“Maybe, but did you notice that his house is on that same lake as Dolan’s?”

“So? I used to have a place near there too.”

“Yeah, but the judge was at his house when Dolan was killed.”

Ebanks folded his arms across his chest and made an effort to look thoughtful. “You know, you’re right.”

The elevator doors opened on the ground floor. The two detectives walked across the lobby. The rookie’s thick eyebrows scrunched together whenever he was thinking something through. They were like that now.

“We had it backward,” Martinez said. He pushed forcefully through the revolving door at the courthouse entrance, and Ebanks followed him. When they were out on the street, Martinez said, “We thought Shadid was murdered and what happened to Dolan was an accident.”

“It does look like Shadid was just in the wrong place at the wrong time,” Ebanks said.

“You mean, it was only a coincidence?”

“Hmm,” Ebanks said. He nodded at the hot-dog cart on the corner. “Feel like a brat?”

“As long as they have mustard and kraut,” Martinez said.

The two detectives walked down the sidewalk.

“You know, I think the judge is as Old World as the Luccheses,” Martinez said. “All that JNOV stuff. What if he did let Dolan out on bail so he could, you know …”

Ebanks blew out a dismissive breath. “What the judge said about justice being done was just a joke.”

“He strike you as the joker type? All I’m saying is, anyone who can fix a busted pipe would know how to rig a furnace.”

Ebanks rolled his eyes. “You really think the judge killed Dolan?”

Martinez slowed to a stop in the middle of the sidewalk, forcing the other pedestrians to flow around him like water around a rock. He turned and stared back at the courthouse.

“Yeah, I do. After lunch, let’s start at Dolan’s place at the lake. I’d like to look around some more.”

“Fine by me,” Ebanks said. “But I think you’re wasting your time.”

“I don’t,” Martinez said.

The rookie’s face expressed the joyful anticipation of a fisherman who’d just snagged a big fish … or of a big fish who’d just swallowed a hand-tied fly. Peace settled into Ebanks’s soul, not unlike what he used to feel when he and Sonia were in his boat on the lake.

They ordered their brats, enjoying the thin warmth of the sun while the vendor assembled them. The scent of cut grass and freshly turned earth wafted on the breeze. Spring had finally arrived.

Ebanks had been a little worried that the judge might recognize him from Sonia’s trial, although it had been four years ago. He remembered their day in court, even if the judge didn’t. The jury came back after two hours with a seven-figure verdict against the trucking company whose driver had been amped on speed when he broadsided Sonia’s car. The money would have paid for the experimental treatment the insurance company refused to cover. Ebanks still couldn’t figure out what their lawyer, a chubby little bald guy in a bargain-basement suit, had done to offend the judge’s sense of order and justice. Whatever it was, the JNOV killed their chance at the miracle cure. Now his wife was serving a life sentence in a prison of pain, and the judge was still spending every weekend at his lake house.

Ebanks chewed his hot dog and thought about the half-finished Parachute Adams in his pocket. He knew exactly where he’d leave it when they went back to Dolan’s place. There’d be no stopping Martinez once he found it.

The only time he’d been back to the lake since Sonia’s trial was the night the Dolan jury hung. Maybe after his retirement was official, he’d take his Sage rod up there and see if the trout were biting.