Death Qualified (46 page)

    And, Nell, I wish us both good luck. See you later." She held out her hand to shake Nell's but abruptly she opened both arms and embraced her instead. Then she hurried back to the car where Frank was waiting, and they started the drive to town.

    She had found Mike asleep on the couch that morning, too bleary to talk after being up all night. Frank had one set of tapes in his briefcase, Mike had the other. He wanted to get them in some kind of order, he had said, make some more notes. He would be in court a little late. Barbara wished the tapes had stayed hidden a few days longer. All night a Svengali figure had prowled her dreams; one dream had placed her against a rock, helpless in a charm, an onlooker while Lucas raped and mutilated that girl in the forest, and then threw back his head in raucous laughter.

    Tony made only one point that Barbara had not anticipated.

    "Hired detectives do not commit murder," he said soberly, in his most mournful voice.

    "An agency is hired to do particular jobs that most of us find unsavory. They spy on people, they plant listening devices, they try to get copies of documents, they do many things, but they do not murder. Because there's no need. They are paid for their time whether or not they produce results."

    Point well taken, she had to admit to herself, as he continued.

    "Ladies and gentlemen," he said eventually, "the facts are fairly simple and irrefutable. Nell Kendricks believed her husband was on his way to claim his share of property she had inherited and thought was entirely hers. She threatened to shoot anyone who entered her property. She did shoot at two men she thought were going to cut down a tree. She had reason to believe that her husband had hired them to do that. She sent her children away for the first time ever in anticipation of the arrival of her husband.

    When the computer system was delivered, she knew that Lucas Kendricks intended to move in again, to make that house his home again, to take up where they had left off years earlier. No one else entered that property that day.

    We know that. No one else had access to her gun. No one else had reason to kill Lucas Kendricks...."

    He began to talk about the ultimate crime, taking another's life, and the finality of death. He was nearing the end.

    When it was Barbara's turn, she stood up slowly and approached the jury with her hands folded before her.

    "Ladies and gentlemen, yours is perhaps one of the most difficult of all tasks ever to fall to citizens of this country.

    There are many mysteries of the human heart and soul that we cannot fathom. There are mysteries of human behavior that we cannot comprehend. We can know only what our own senses tell us; all else we must take on faith. You can never know for certain what another human being thinks or feels. You can know only what that other person says.

    You can never know for certain what act another human being has committed unless you personally witness each act. And yet, you are required today to decide the outcome of a trial that involves murder, that will affect the life forever after of another human being and her children.

    "As you consider the evidence that has been presented here, I ask you to keep in mind the question: Has the state done all it could have done, and all it should have done to clear up some of the mysteries that abound in this trial?

    Has the state proven beyond a reasonable doubt that the case it has presented is the only possible one? You have heard witnesses impeach their own testimony, recant their own words, confess to having lied. In those instances, did the state do all it could have done and should have done to find the truth of their testimony before accepting it as true?"

    Slowly she tracked Lucas Kendricks's movements, and now and then she asked the same question: Did the state do all it could have done and should have done to find the truth?

    "Placing the listening device in the tree was an illegal act. Recording conversations surreptitiously is an illegal act. Where are the tapes? Did the state make an effort to locate them and learn what they might reveal about what happened on the ledge that day? And if not, did the state do all it could have done and should have done to determine the truth?"

    She sipped from her water glass and went on. She was keeping her voice pitched low, conversational, including each man and woman on the jury in her meditative summary.

    "On that Saturday the listeners must have heard the UPS delivery man speak to Tawna and James Gresham. They must have heard him get directions to continue to the little house. There was time for one or both of them to get into the boat at their disposal and to approach Nell Kendricks's property from the river, dock at her beach, and get to her house without being seen. The second she left by one door, another person could have entered by a different door.

    They were looking for something Lucas Kendricks was said to have; they had been hired to track him, to find him, to recover something of value. Wouldn't it be possible that they assumed the something they were looking for had been delivered by UPS? So someone else did have access to the house, and to the gun that Nell Kendricks left on the couch when she went into the woods and up to the ledge. That it was someone other than Nell Kendricks is the only reason for the rifle to have been wiped clean of fingerprints. She had no reason to clean her fingerprints from it; the rifle was hers, she had fired it recently. But someone had reason. If her prints had been found on it, no one would have thought that mysterious, but not to find any prints at all is very mysterious."

    She walked to the drawings she had used before, and to the map that was enlarged to show both trails and the divided ledge clearly.

    "No one keeping out of her sight, following her, could have seen her take the right branch here," she said, pointing first to the map, and then to the.

    drawing that included the large trees.

    "No one unfamiliar with that trail and the ledge would know about the small, steep path that goes up there. And anyone who kept to the main trail and ended up here," she said, pointing again, "would have had a clear view of the entire clearing." She turned to look at the jury; they were very intent.

    "Anyone standing here," she said with emphasis, pointing again, "anyone more than five feet eight inches tall, would have had a clear line of fire across the clearing. A shot from here would account for the angle of the wound, and we no longer have to assume a kneeling position, or that Lucas Kendricks might have leaned over, or any other odd position for him."

    She walked away from the maps and drawings and continued her summation, again and again asking her main question about the state and its investigation.

    "You heard the statement Nell Kendricks made to the investigating officers. She could add nothing to it in this court, and, ladies and gentlemen, it is not her obligation to prove her innocence. Her innocence is a given, just as it is a given for each and every one of us, unless proven otherwise. Has the state truly proven otherwise? Did they investigate the ranger who claimed to have seen Lucas Kendricks's car in the forest? Who told him it was there?

    Someone knew Lucas Kendricks was going home on foot.

    Who was it? The state has the resources to investigate; it is not the duty of a private citizen to launch such an investigation."

    She moved in toward her conclusion at last.

    "Nell Ken 3 dricks was in no danger from Lucas Kendricks at any time, and she knew that. She had neighbors nearby. She had a car she could have got into and left in. She could have called the police. Any of these options were available to her. She did not have cause to want him dead. She could have divorced him at any time if she had wanted to. He was a poor, dehydrated, hungry man whose feet were so blistered and infected that every step must have been torment for him. He had escaped from his enemies and knew they were coming after him. He was afraid. He was not a threat to his wife, but he was a threat to others.

    "Has the state proven her guilt? No, ladies and gentle men, it has not. Has the state used its vast resources to investigate all the leads it could have followed to solve the many mysteries we have encountered? No, it has not. And until those other questions are answered, there must be doubt, more than reasonable doubt, indeed very grave doubt about who fired the shot that killed Lucas Ken dricks."

    When she sat down, she knew she had been inadequate.

    After all her preparation, all her notes, her practice, it was not enough, she thought in near despair. She felt Frank's hand on her shoulder; it was very warm. He squeezed and let go. Judge Lundgren called a ten-minute recess before he instructed the jury, and she let out her breath.

    "You were so good," Nell whispered at her side.

    Behind her, Frank growled, "Good work, Bobby. Top of your form."

    The recess was agony. Nell was bewildered by the attitude of Barbara and her father; she had believed it over, but they were both more anxious than before, and neither one told her why. Barbara felt exhausted, hollowed out, with only a bunch of exposed nerves remaining now; she sat without moving. Frank paced. He saw Mike and shook his head slightly; Mike withdrew into the crowd of people milling about in the hall. Clive was in a seat looking tense. Frank nodded to him and paced the length of the aisle, back to the defense table where Barbara had not stirred, up the aisle to the hall door again.

    Judge Lundgren returned to begin his instructions. He explained the difference between aggravated murder, murder in the first degree, and manslaughter. He explained the jurors' duty, and then he told them they could not consider any of Ruth Brandywine's testimony. They could not consider anything that had happened to Lucas Kendricks before he showed up on the ledge on his wife's property.

    Barbara felt the hollow spaces within her filling with ice water as he continued talking about what was irrelevant and what was not, what could be considered, what could not. There would follow other investigations, he said in explanation; they were already underway, but none of that concerned the case they were to decide.

    After the jury was led out and the judge left the room, Barbara again felt Frank's hand on her shoulder, but where it had been warm and comforting before, now it simply felt heavy.

    When Barbara stood up to leave the courtroom, Tony appeared at the side of the defense table. He held out his hand, and after a moment she accepted the handshake.

    "Good work," he said.

    "After this is all over, Larry would like to get together with you. He'll be calling."

    Lawrence Ernst was the district attorney.

    She nodded. "Barbara, the other day you asked who it was I wanted to see crying and begging. Remember? Good question. It really shook me up."

    He could still do it, she thought in wonder; he could still look raw, strangely hurt, yearning. Instantly, with the recognition of that look, there came the response; maybe she could soothe that hurt, make it not hurt. Maybe she could make him well. She felt her hands tighten and said nothing.

    "We've had a lot of time to think, you and I both," he said in a low voice.

    "Let's have a drink and talk. Not now, not today; when this is all behind us. Will you do that, just have a drink and talk?"

    "I .. .1 don't know," she said.

    "Let's find out later."

    "Good enough." He turned, then paused and faced her again, this time with a small grin that came and went very fast.

    "I don't want to see you beg and cry, Barbara. My God, you look just fine on the white horse charging the castle walls." He wheeled and walked away quickly.

    THIRTY

    frank led the way to a small room where they could wait. He surveyed it gloomily when they entered; there were gray vinyl-covered chairs, a lumpy couch, and two tables, one with a telephone.

    "Many, many hours of my life spent in here," he said.

    "We won't have to stay here long today though. They'll announce the lunch break, and after that we can go to a more comfortable waiting room at the office. That's the routine."

    "Do you have to stay with me?" Nell asked. She stood in the center of the room, hugging her arms about herself as if chilled.

    "Don't have to, but you blow out of town and the attorney's neck is at risk. Remember a time, the Wesley Sims trial, remember, Bobby?"

    She shook her head, distracted, pacing the small room that seemed to have been designed to deepen the gloom of a defendant.

    "Well, Sims was my client, up on a charge of sticky fingers in the till, or some damn thing. He sat in each chair in here, tried the couch, and pretty soon said he had to leave for a minute or two, be right back. So off he went.

    And he didn't come back, and didn't. Finally the jury said they were ready, and still no Sims. I had clerks everywhere looking for the idiot, and at the very last minute in he waltzes, drunk as a lord. Really tied one on in about two hours. So we went in, and I had to prop him up all the way. Had a clerk stay right behind him to hold him upright in court. The jury said not guilty and the silly clerk moved his hand, and down went poor old Sims. Out cold. The foreman asked the judge if they could reconsider." He laughed, and Nell managed a little smile.

    There was a tap on the door, and Barbara rushed to open it. She knew it was too soon for a verdict, but still,.

    she thought ruefully, there she was running. Mike stood there looking hesitant.

    "Can I come in?"

    Barbara turned to Nell.

    "This is up to you, who waits with you," she said.

    "Anyone you want, or no one. What ever you want."

    Nell shook herself.

    "I forgot," she said.

    "I simply for got that I told Clive he could wait. And you, too," she added to Mike.

    "I'm glad to have someone."

    "I'll round up Clive," Mike said, but still hesitated.

    "I

    have a lot of notes about the tapes. Would you rather not go into any of that while you're waiting, or with Clive here?"

    She looked surprised.

    "You heard them?"

    "I'm sorry," Barbara said.

    "I should have told you. No time. No time. Anyway, there were so many, and I had to find out if there was anything we could use, so we all listened to them. Mike's the only one who got through the whole bunch."

    Nell moistened her lips.

    "I want to know what you learned," she said.

    "I'll listen to them after .. . later.

    But I want to know. And dive's all right. I've been telling him pretty much everything as it is."

    "And getting rotten advice," Barbara muttered too softly for Nell to hear.

    Frank caught her words and added, "Doesn't he have a job or something? And you," he said to Mike, "why aren't you in school? Clive already lost one job over this mess, and the way you're going, you'll both lose your jobs, and then who buys the Wheaties?"

    Mike grinned.

    "In your day you had to walk six miles through the snow to get to work, and you never missed a day. I'll go find Clive. Saw him a couple of minutes ago."

    Nell sat at the table finally.

    "What do you mean, Clive lost a job?"

    "He didn't tell you? Didn't Lonnie? She's the one who informed me, and everyone else in Turner's Point, probably.

    Said he messed up his last couple of estimates as soon as he knew you were a free woman. Just couldn't keep his mind on his work." He smiled at her.

    "And here he is doing it again. I'd say the boy's getting serious." He went to the phone then and ordered coffee. When he hung up, he added, "As for Mike, he seems to check in at his work when he's got absolutely nothing else to do, as a last resort."

    The difference was that Mike never stopped working, Barbara thought. She found his scribbles everywhere, formulas, equations, strange icons that meant nothing to her, pages and pages of them.

    The men came back together just as a boy brought in a tray with coffee. Clive went directly to Nell; he took her hand and held it. Frank paid the delivery boy and passed the paper cups around.

    "Now what?" Clive asked.

    "Wait," Frank said.

    "That's all, just wait. Some folks play cards, or read books, or knit sweaters, anything to keep the hands busy. Some order coffee that's undrinkable just to have something to stir, something to do."

    "Remember Peter Neuberger?" Barbara asked Frank;

    he nodded.

    "He made quilt pieces," Barbara said.

    "Beautiful things. He had his clients furnish a piece of material, if they would, and he embroidered the charge embezzlement, grand larceny, breaking and entering, whatever it was--and their names on each piece. His wife put them together."