Unlucky in Law (7 page)

He should talk about smoke, mirrors, and dirty work, but tit for tat, he had to object in order to keep the point count even, and she had to deal with it. “I am sticking to fact,” Nina said. “The prosecution has no idea why this woman was murdered. They can't link the defendant to the victim. It has nothing to do with motive, it goes to the basis of the prosecution's case, and we have a right to mention it.”

So no enterprising reporter could read his lips, Salas hid his mouth with his fingers, saying, “Stick to the facts. You're arguing the case. I know what's going on. You take your cues from the old man. You're arguing the law and trying to prejudice the jury from the get-go. Listen. I won't stand for it. You understand? Talk about what you're going to prove and then sit down. Is that clear?”

“Thank you, Your Honor,” Nina said, hoping she sounded truly grateful. The old game was afoot. The jury must think the judge approved of her whenever she could pull it off. Salas waved them away, and she went back to the witness box.

“Er—as I was saying . . .” What had she been saying? Something that had got her slammed against a wall—talk about the facts—take control, be bold . . .

“Four facts,” she said. “The prosecution claims that four facts will show Mr. Wyatt committed this murder. Well, three of them do link Mr. Wyatt to a grave in Cementerio El Encinal.” That got the jurors' attention.

“Mr. Wyatt's footprints were indeed found near the grave. Mr. Wyatt did indeed place the remains of Constantin Zhukovsky in his car. When stopped by Officer Jay Millman of the Monterey Police Department, Mr. Wyatt did in fact have a medal in his pocket which had been buried with Constantin Zhukovsky in 1978. Those facts link this defendant to that grave, the grave where the body of the victim in this case was found.

“The evidence also will show that Mr. Wyatt, who had been unemployed for the previous three months, had five hundred dollars in his pocket. It will be up to you to draw a factual inference as to why Mr. Wyatt had that money and whether it was related to disinterring the remains of Constantin Zhukovsky.”

Right, keep the fact that he dug up an old man's bones and stuck them in a grubby duffel bag at a distance by using words like “disinter.”

Hmm, the forewoman's face said.

“Digging up a grave for someone is not murder,” Nina told the jurors. “Someone paid five hundred dollars. Who? Who else knew Mr. Wyatt would be digging up the grave that night? Ask yourselves that question as this trial progresses.”

Nina stopped. She could not accuse Alex Zhukovsky of anything outright, because Stefan Wyatt wouldn't be testifying to say he had hired him in the first place. Zhukovsky denied he had hired Stefan, and all the defense had was five hundred bucks floating around in a pocket that never otherwise sported such riches to show Stefan hadn't acted on his own.

She had said all she could on that topic. “Ask yourself this, too,” she went on. The inner logician reappeared, unexpectedly. She wasn't thinking ahead of the words that came out. Silently, she applauded that part of herself that worked in the background, a silicon chip, amassing information, collating, and on top of that, doing the work of a creative artist, figuring out how to adapt the information to best effect. “Where was Mr. Wyatt taking those bones? What earthly use could he have for them? If he just murdered a woman and went to hide the body in a grave, why pick Christina Zhukovsky's father's resting place? Why make a spectacle of himself, driving around Monterey with a taillight out and a set of human remains in his car?”

The jurors appeared flummoxed.

Excellent. As the trial progressed, somebody would have to come up with a coherent theory about Stefan Wyatt and that duffel bag full of bones, and it better be Jaime. Thank goodness that wasn't her job. The burden of proof was on the prosecution. Sometimes the defense's main job was to sow confusion, and that was the one thing she felt absolutely qualified to do in this case.

“Now, you will also be presented with blood evidence, ladies and gentlemen,” Nina said. “A forensic technician will testify for the prosecution that some small amount of blood found in the victim's apartment turned out, after all kinds of newfangled DNA testing, to be similar to Mr. Wyatt's blood. It's always tempting to accept what a scientist tells you about a test that's very hard to understand. I ask you not to do that uncritically.

“Instead, I ask you to listen with discerning ears to the testimony of the defense expert, Dr. Ginger Hirabayashi, a top forensic pathologist, who will tell you that—that mistakes can be made.” It was weak, but she had to say something about the blood. Actually, the blood evidence would convict Stefan if Ginger didn't come up with an alternative explanation, and she hadn't been able to do that right up to this moment, so . . .

Forget about Ginger. There was something else about the blood she wanted to say, something helpful. She turned toward Klaus, hoping he would be able to mouth some crucial word at her to help her remember, but Klaus simply waved, the king approving of his resourceful lackey.

“Right,” Nina said. Someone stifled a yawn in the back, which set the tip of her tongue to tickling. The blood, and oh, yes, where there was blood there had to be . . .

“Mr. Wyatt was arrested the day after this murder, booked, searched, and examined, but please note: here's the evidence. He didn't have a single cut or bruise on his body. He was not wounded. So how could he have bled at Christina Zhukovsky's apartment late the previous night?

“Where did that blood come from?”

Nina put her hand on the railing and asked them the question she had been punishing herself with for the past two weeks.
“How could blood possibly come from Mr. Wyatt when he had not bled?”
She heard Ms. Frey's jaw click as she processed the question. Nina didn't move, holding them in that moment, Stefan's chance.

Finally, Ms. Frey looked away. The other jurors cleared their throats and stabilized themselves in their chairs. Nina stepped back. “Thank you for your time.”

“We'll take the mid-morning recess.” Judge Salas rapped his gavel.

Nina recovered from the haze of her thoughts to face the bald glare of the courtroom, smelling the sweat of people too long confined and the ordeal of their thinking. She felt worn out, as if she had run a long way on a boiling hot day. Gulping for breath, dry-throated and unable to speak further, she left the courtroom ahead of Klaus, who stayed behind to talk with Stefan. Her mouth tasted of burnt pudding, cinders, dust. Today stood out among the worst days of her life. She had winged an opening statement in a homicide case. She felt angry, relieved, used, and plain confused.

Making the curve outside the courtroom door in record time, she headed for the ladies' room, hoping the reporter Annie Gee wouldn't follow.

She washed her face and hands, got out her brush, bent over so her hair hung toward the floor, and started brushing her hair from the roots up. This ritual blood-stirring always calmed her.

The door opened. Annie's inquisitive eyes reflected brightly in the mirror behind her.

6

Tuesday 9/16

“S
TATE YOUR FULL NAME FOR THE RECORD.
”
T
UESDAY WAS A NEW
day, and the courtroom smelled of smuggled coffee. The high windows let in a flood of marine light, reminding Nina that the Pacific Ocean, even in inland Salinas, was only fifteen miles away.

The young police officer, a new father whose eyes sagged with lack of sleep, said, “Jay Arthur Millman.”

“You may be seated.”

Millman, in full uniform except for his weapon, which had been checked, sat in the witness box and looked around curiously, as if unsure where the questions would come from. Jaime didn't get up, but, marshaling his files and his papers, he let his witness know where he was.

Beside Nina, Klaus sat in his black suit, starched white shirt with gold studs, and a blue-on-red tie. Right on time and sunny as usual, he had brought nothing but a leather notebook with a large brass clasp and a fountain pen. Nina had set up the files in front of him. Watching him come up the central aisle as he greeted Paul, the reporters, clerks, and other lawyers, and seeing the affection and respect he received, Nina felt comforted. He was a legend, and there was inherent dignity in acting as his minion.

From the report Officer Millman had filed, they already knew what he had to say. Nina took rapid notes as Jaime whisked the witness through his graduation from the Police Academy and his two years as a patrolman on the City of Monterey police force. Talking about these familiar topics, Millman relaxed. He was shockingly young, twenty-three years old, thin-shouldered under his uniform jacket, his chin scraped clean.

“Now, directing your attention to the early morning of April thirteenth, were you on duty that night?”

“Yes, sir, third watch, twelve to eight
A.M.
”

“What were your duties on that particular night?”

“Patrol the downtown Monterey area, check the patrons at the nightclub on Alvarado when the club closed to make sure they weren't driving away intoxicated, respond to any incident calls at the hotels or burglar alarms going off at any of the downtown businesses. Make traffic stops as needed. Keep an eye out,” Millman said. Ms. Frey nodded, apparently liking this fresh-faced young man.

“You were patrolling with a partner?”

“Officer Kyle Graydon. He joined the force last year.”

“Did your patrol area include the city cemetery?”

“Yes, and the Catholic cemetery right next to it. The cemeteries are located about a mile from downtown, along Lake El Estero, just across from Dennis the Menace Park.”

“And during the first two hours of your shift did you pass by the cemetery? The city cemetery?”

“Yes, sir, once on the Fremont Avenue side and once on the Pearl Street side, where the park is.”

“Did you observe anything unusual during those drive-bys?”

Millman thought, then shook his head. “It was a quiet night. Occasionally, we get teenagers climbing the fence into the park to get onto the locomotive at the kids' playground or just to party on the grounds there. Right across from the cemetery there's a parking lot, and a grassy area with picnic tables where people come to feed the ducks in the daytime. Late at night, some come to make drug deals or sit in their cars. But that lot was empty on Saturday evening, April twelfth, and going on into Sunday. Like I say, it was a quiet night.”

“What about the parking lot for the city cemetery?”

“There isn't one. You just drive through the gates—which are closed at sundown, by the way—drive through and park along the paved ways by the grave you want to visit. Or there are a couple of spots at the manager's shack in the middle of the cemetery. But we don't ordinarily patrol inside there at night, since the gates are closed.”

“Is the lot by Dennis the Menace Park and the municipal ball field closed at night?”

“There are always a few cars there, day or night. I think park personnel leave their cars there overnight. As long as the people aren't hanging around, we don't give them a hard time.”

“Did you observe cars in that lot during your shift during the early morning of April thirteenth?”

“Yes, sir. Officer Graydon and I were driving by and we saw an old Honda Civic pull out of the lot onto Pearl. We were just turning onto Pearl off El Estero, and we began to follow the vehicle.”

“When would that be?”

“After two in the morning of the thirteenth.” He put the time into parlance the jury could understand.

“Why follow the car?”

“The left taillight was out.”

“Do you always pull over cars with missing taillights?”

“The driver shouldn't have been in the park lot at that time of night,” Millman said primly. “We check things out, try to keep the place safe.”

Jaime opened his mouth to continue his methodical line of questions but Millman jumped ahead. “We pulled him over right at the corner of El Estero and stopped behind him. Officer Graydon remained in the police car to call in the plates, and I approached the driver's door with my flashlight. That was at two-ten
A.M.
”

“What happened then?”

“The driver rolled down his window. I asked for his license and registration. While he was getting it, I shined my flashlight around the interior of the car.”

Nina made a note, adding an exclamation point. The exact method by which Millman had discovered the bones had not been thoroughly reviewed in Klaus's files. Paul had tried to interview Millman the week before, but the officer was on a brief paternity leave and hadn't been available. They might have an illegal search and seizure issue. Unfortunately, the time to raise that issue was before trial.

“Why, oh, why didn't we file a 1538.5 motion?” she whispered to Klaus, but he wiggled his fingers at her and kept listening. She pulled out the pretrial motions file and double-checked. Nothing. She had read the preliminary hearing transcript quickly the week before, and hadn't noticed the potential legal issue. Her chest tightened, as if her heart were hardening itself against an assault.

Millman was busy covering that potential issue. “Standard procedure requires that we make sure the area within a vehicle where a driver could grab a weapon is clear.”

“You were not looking for anything but a weapon?” Jaime asked.

“Oh, no, just making sure it was safe to be standing there. That late at night you don't want any surprises.”

“What, if anything, did you see, using the flashlight?”

Sensing a coming revelation, the jury paid attention. A thought pushed at Nina straight out of evidence class in law school: if you don't object before trial, you can usually still raise it at trial, but if you don't raise it then, the issue's waived, gone forever.

Except, of course, at the legal malpractice hearing.

She didn't have time to get up or to form a complicated thought. She just called out, “Objection!”

Jaime spun around, and she knew he had thought he was home free. Disappointed, the jury frowned her way.

Klaus whispered, “What are you doing?”

“Just one moment, Your Honor,” she said. She put her head close to Klaus's, saying, “Why didn't we raise the search issue?”

“What search issue? The flashlight? He's entitled to a light.”

“No! No! There's a case!”

“About a flashlight?”

“Klaus, I'm going to make an objection. For the record. Please don't stop me . . .”

“By all means, make your case,” Klaus said mildly. “No permission is required.”

She stood. “The defense objects to the introduction of any evidence regarding items found in the car on grounds that the search was conducted in violation of the Fourth Amendment, which makes it an illegal search and seizure.”

Stuck in a pose in front of the jury, Jaime let out a disbelieving snort. Nina hardly dared to look at Salas, but she nevertheless felt the bullets of disapproval he launched toward her from the bench.

“Five-minute recess.” Salas admonished the jury not to talk about the trial. They filed out.

Then he aimed a look at her that told her she had blown whatever goodwill they had started out with. He said, “On the record. You have stopped this trial cold to raise an issue, which, unless I am mistaken”—he looked at the index of old pleadings in front of him—“has never before been raised. Am I correct? Was there a motion filed?”

Nina looked at Klaus, but Klaus just shrugged, and she thought, He has no idea or else he doesn't give a damn.

“There was not,” Jaime said.

“Was there a 1538.5 motion filed after the preliminary hearing?”

“No, Your Honor,” Jaime said.

“How about a motion
in limine
or any sort of pretrial motion at the time we were hearing motions on issues like these?”

“None was filed, Your Honor.”

“I apologize to the Court,” Nina said. “I am relatively new to this case, and need time to confirm Mr. Sandoval's statements. I regret that this issue apparently was not identified earlier. However, the defense asserts its absolute right to raise it at trial.”

“All these proceedings I just mentioned,” Salas said, “they're to prevent just this sort of thing—interruptions at trial, lost jury time, inefficient administration of justice.”

“Yes, Your Honor,” Nina said. “However, I object to the introduction of any testimony regarding what Officer Millman saw with his flashlight, or any evidence that might have been obtained as a result of the use of the flashlight.”

“Your authorities? Do you have a brief to present?”

“I request a continuance of twenty-four hours to prepare and present points and authorities,” Nina said desperately. She couldn't remember the case about the flashlight, not now.

“Mr. Sandoval?”

Jaime returned to his table. Leafing through some paperwork, he said, “The officer has testified that it was late at night. He made a legitimate traffic stop, and it is well established that he had a right to make sure the driver didn't have weapons within reach as he approached the car. It's a matter of the safety of our officers.

“That's number one. Number two, Your Honor, I object to any continuance. The defense received the police report outlining the traffic stop and use of the flashlight months ago. It is within the Court's discretion to deny this motion for a continuance in order to conduct this trial in an orderly and efficient fashion . . .” He went on, but the words rushed by, a background torrent in Nina's ears now.

When Jaime finished, Nina opened her mouth and let go of the emotions that batted at her, saying, This will bury Klaus; you are exposing him, the firm, and yourself to ridicule and possibly a malpractice accusation. She spoke to the law. “Your Honor, we should not have waited to raise this. However, if this tainted testimony comes in, there's no way to block it out of the jurors' minds later.” Implicit in that sentence was the threat that the verdict wouldn't stand up on appeal.

Salas's face darkened. He loved being on the bench. He exercised good judgment. He abhorred reversals. “You may cross-examine Officer Millman as to this issue, and you may raise it on appeal or do whatever you can with it later. But this Court will not put over the trial a day on a matter that could have been carefully briefed and heard on numerous—numerous—occasions prior to this trial. Is that the extent of your authorities right now? The prohibition in the Constitution against search and seizure? Do you have any California case law to present?”

“Not without time for research,” Nina said.

“The motion for a continuance is denied,” Salas said to the recording clerk. “The motion to suppress the testimony and evidence flowing from the flashlight observation is denied.”

A short silence followed. Then Nina said, “I reserve the right to raise the motion again after cross-examination of this officer.” She sat down.

“Bring the jury back in,” a dour Salas told the bailiff.

“A large green duffel bag was lying partly on the back seat and partly on the floor,” Officer Millman said. “Looked like it was falling off the seat. It was right behind the driver. Open about four inches.”

“Did you see anything unusual?”

“I sure did, a long object about eighteen inches long, with a sort of thick knob on the end. And another knob poking out where the bag wasn't closed. I call that suspicious.”

“Why?”

Everybody in the courtroom waited for Millman to say he thought the objects were bones, that they were bigger than anything Colonel Sanders dished out, but Millman surprised them. “I thought they might be weapons,” he said.

Bones turned into rifles on that scary, dark night; it was an elegant move on Jaime's part. He had just buttressed his legal-search argument with struts strong enough to support the cathedral at Chartres. The police had more leeway in the law when they thought they were seeing guns than when they thought they were seeing evidence. Nina didn't believe for a second that Millman had really thought about weapons upon seeing a bunch of bones spilling out of a duffel bag.

“What did you do then?”

“I asked the driver to step out. I called Officer Graydon over. Then I asked the driver what he had on the back seat. He refused to answer, so I opened the rear passenger door behind the driver and pulled the bag out onto the street.”

The jury leaned forward again. Madeleine Frey threw a quick glance at Nina to see if she would pop up again to deny them their testimony, but Nina had done what she could. She sat there, hoping to express nothing more than a bland nonreaction while Millman said, “The contents fell out on the road. They appeared to be human bones, and pieces of what looked like a man's blue suit.”

While a few winced, on the whole this was going to be a tough group—most eyes squinted with interest. A murmur traveled around the courtroom. Millman had the rapt attention of every person there.

“What did you do then?” Jaime asked.

“I attempted to question the driver about the bag. He said he wanted a lawyer, even though I hadn't Mirandized him or arrested him. I told him he was being detained for questioning and I secured his vehicle and the bones, then put him in the police cruiser and took him to the station.”