Acts of Malice (29 page)

The time had come. He adjusted himself at the table. ‘‘I have something to say.’’

‘‘I knew there was something else. The Strong case?’’

‘‘Good news on that front,’’ he said, and then kicked himself as he saw the eagerness in her eyes. She thought he meant they were dismissing charges against Jim. ‘‘I mean, it isn’t a sore point anymore,’’ he said quickly, rushing to mitigate the damage. ‘‘I can’t go into the details, but I believe Barbara’s taking over that case.’’

She listened to him. ‘‘You’re joking.’’ She had withdrawn very slightly as they began to talk about the case. Well, she had to be as careful as he did, but he was sorry to see it.

‘‘I’m not.’’

‘‘Oh, Collier, I—I want to talk to you about this. Tell me you didn’t give it up to help me—’’

‘‘Nina, it wasn’t like that. It was strictly an administrative matter. I can’t say anything else.’’

‘‘Because I was thinking of trying to bail out myself. I was having some— Oh, what’s the use. I can’t say anything, not a thing.’’

‘‘You wanted to bail? I’m surprised if that’s so, because I had the impression from our heated discussions in my office that this case meant a lot to you.’’

‘‘Never mind,’’ Nina said, shaking her head. ‘‘We have to stop talking about it. I’m just floored. I know I’ll never get to sleep tonight.’’

Collier consulted his watch. ‘‘Speaking of sleep, it’s late, and I saw on the docket on my way out of the office that we both have court at eight-thirty tomorrow morning.’’

He chased down the waiter, who had run off with his credit card and failed to return, while Nina stopped in the rest room. In the anteroom, they picked up their coats, and he helped Nina put on her long down-filled parka. Pulling on her red mittens, she suddenly said in a halting voice, ‘‘Before we go—I just want to say—I love you so much—our future together—it’s going to be beautiful. A new life . . .’’

He put his arm around her and brought her close. The top of her head came up to his chin. They went out like that, into the pure and freezing night.

23

‘‘ALL RIGHT ,’’ SAID Judge Flaherty, ‘‘the motion before the Court is to exclude any and all testimony at the preliminary hearing relating to alleged prior acts of malice perpetrated by the defendant.’’ He was reading the heading on Nina’s brief.

‘‘Let’s see,’’ he went on. ‘‘The primary concern seems to be expected testimony from Kelly Strong, sister of the defendant. The prior acts of malice include causing Miss Strong to have a skiing accident some fourteen years ago, engaging in various acts of cruelty toward animals some fifteen years ago, and other instances. So —you don’t want any of this to come in, counsel?’’

‘‘Correct. Basically, we seek to exclude any testimony which purports to show prior bad character, or a predisposition to commit a crime, Your Honor,’’ said Nina, who was still wearing her coat as she stood at the counsel table summoning up her arguments.

Eight-thirty in the morning, with the second prelim scheduled for nine. Outside the courtroom the lights were still on, because the winter had closed Tahoe into the dark fist of a storm. Artie hadn’t even made it, but he would certainly be around by nine. The courtroom was deserted, except for the two attorneys and the court personnel, and Collier, sitting a few seats behind Barbara, arms folded, deceptively at ease.

Even Jim wouldn’t be arriving until shortly before nine. With its yellow lights hardly breaking through the black morning, the courtroom felt as cold and remote from the world outside as one of the prehistoric caves at Pyramid Lake, a feeling reinforced by the scrawled stick figures on the blackboard left by a cop in some earlier hearing.

‘‘I’ve read the papers,’’ Flaherty said in his warning tone. He didn’t want to waste any time this morning hearing a rehash of cases and points Nina and Barbara had already made much more efficiently in writing. ‘‘Go ahead, counsel.’’

Nina said, ‘‘Let me be brief, Your Honor. Kelly Strong hasn’t seen her brother, except for a few minutes at the funeral of the victim, for a number of years. The subject matter is stale. It’s so old, Your Honor, that I don’t even need to go into the second argument we’ve made, which is that the subject matter itself has limited or no probative value, is incredible, and would be introduced only to show bad character, which is impermissible pursuant to section 1101(a) of the Evidence Code.’’

‘‘I’ve got that. That’s how you lay it out,’’ Flaherty said. ‘‘Miss Banning, how do you respond to the contention that the testimony you’d like to adduce is too old to do us any good?’’

Barbara stood up in a suit as red as a cardinal’s robes. However, a cardinal’s robes would not have ended at mid-thigh as her skirt did. She wore fabulous gold jewelry on her wrists and neck. Even her files were aligned in an elegant fan pattern on her table.

In spite of the bold duds, she was all business. ‘‘It’s a pattern from childhood to adolescence to early adult-hood that sheds important light on the modus operandi of this defendant,’’ she said. ‘‘The evidence isn’t of some trivial childhood transgression, Your Honor. The testimony doesn’t involve a few isolated incidents. What the testimony
will
show is at least twelve instances in which the defendant has demonstrated a lifelong pattern of terrorizing people around him.

‘‘And what is his method? He attacks in a very specific, yet devious manner, Your Honor. He destroys something that the object of his attack cares about more than anything else. For example, the testimony will show that he destroyed his sister’s professional skiing career, the thing she wanted the most. A beloved pet, the pet his mother loved. The list goes on and on. To commit these acts of malice amounts to a compulsion, Your Honor.

‘‘The last incident, in which Kelly Strong was almost killed, is fourteen years old. But the first incident is twenty years old. We’re talking about a period of several years. There is ample reason to infer that this same pattern has reasserted itself. So we’re not asking the Court to allow such evidence because it shows the defendant’s disposition to commit violent acts against family members, or to show bad character generally. The prosecution understands that such evidence is inadmissible.

‘‘What we are saying is that the method of killing Alex Strong was the same method used when the defendant became angry at other family members. Violence, Your Honor, a particularly ugly violence with a particularly malicious flavor, recognizable throughout the defendant’s life.’’

Flaherty scratched his cheek with his pencil eraser. ‘‘It is true that the exclusionary rules may be relaxed in a preliminary hearing,’’ he said as if to himself, but making sure that the whole courtroom could hear him. ‘‘Mrs. Reilly, your objections are all technical. In a preliminary examination perhaps we should allow this, in a condensed form perhaps.’’

Nina said, ‘‘If I may respond?’’ and Flaherty nodded.

‘‘Ms. Banning’s central point is that all the alleged acts fit a certain pattern. And what is this pattern? I wrote down the crucial sentence in the argument that’s just been made, Your Honor.’’ Nina read from her legal pad. ‘‘I quote: ‘He destroys something that the object of his attack cares about more than anything else.’

‘‘If that is the pattern, I ask counsel: how does it fit here? Let’s assume for the moment that the defendant does demonstrate such a devious pattern. So what did he destroy that Alex cared about more than anything else? His life? Give me a break. That’s not devious. They don’t claim that he broke Alex’s legs, or killed his cat, or even hurt his wife or something. He’s supposed to have killed Alex, a direct act if I ever heard of one. The so-called method or pattern of indirect malicious acts, even if there were one, doesn’t fit, Your Honor!

‘‘Furthermore, this pattern only is supposed to come into play when the defendant is angry at a family member. If so, there has to be some foundationary evidence that the defendant was angry at his brother! In the witness summaries I’ve read, there’s no evidence like that. In fact, the statement the defendant gave to the police, which will come in, indicates that Jim Strong held his brother’s head as he died in a tragic accident—’’

‘‘Wait!’’ Barbara said. ‘‘We do have a witness who overheard the defendant’s father tell the defendant that his job was going to be taken by the victim.’’

‘‘You mean Gina Beloit?’’ Nina loaded her voice with incredulity. ‘‘We have an eavesdropper with an agenda, that’s all we have,’’ Nina said. ‘‘Did the father make one move to replace him? Would Alex have accepted? Why blame Alex? Why not kill his father? No, Gina Beloit’s testimony will not a motive make. Without motive, a solid reason Jim Strong might have wanted to harm his brother, there is no trigger for this alleged pattern.

‘‘You can ferret out a hundred bad things any of us did as kids, but that doesn’t prove he perpetrated a heinous crime out of the blue against a family member.’’

Nina was using an old technique to humanize her client by identifying herself and others in the courtroom with him, while at the same time casting aspersions on the prosecution for acting like small, vicious animals. The judge was too savvy to fall for the obvious ploys, but she trusted unconscious influences to sneak into the decision-making process.

She shook her head, saying emphatically, ‘‘It’s just that the prosecution doesn’t have anything else to work with, Your Honor. What they really want to do with this evidence is to persuade the Court that Alex Strong was murdered. If the defendant looks like a bad enough guy, maybe that will make up for the fact that there’s no direct evidence of a murder and that the forensic work was lousy.’’

Flaherty was getting her real point: that Kelly Strong’s testimony would lead to frequent objections, lengthy argument, corroborative witnesses, and rebuttal witnesses. The hearing would get messy and would be significantly protracted.

Flaherty’s face lengthened.

Collier fidgeted in his seat, obviously itching to jump up.

‘‘We can finish her direct testimony in half an hour,’’ said Barbara, just as instantly responsive to the judge’s mood.

‘‘More like two extra days,’’ Nina said. She smiled at the younger attorney. Barbara fingered her gold and smiled back. She wore the composure as well as the color of a cardinal, Nina had to admit.

‘‘If I may—’’ Barbara began, but it was too late.

‘‘I’m not going to allow the testimony,’’ Flaherty said. ‘‘It doesn’t have much probative value. It’s old, and it just doesn’t seem to me to assist in demonstrating a modus operandi.’’

‘‘But—’’

‘‘So ordered. We’ll start the hearing at nine.’’

They went up to the clerk together to pick up the minute order. Barbara showed no sign that she had been bested. ‘‘What perfume are you wearing?’’ the clerk asked her.

‘‘Oh, do you like it? White Linen. It’s old-fashioned, but I love it.’’

‘‘And I dabbed on some Tom’s Natural Toothpaste before I left,’’ Nina said. They ignored her. The chat turned to fingernail polish, which Nina was not wearing. She left, having no hope of competing in that arena.

She passed Collier in the hallway. He shot her a glance, then swept past her, completely focused on Barbara.

So he was out, but not completely. Barbara had him lurking in the court for backbone, not that she seemed to need another one. Or was he still in charge?

Outside in the hall at the bank of phones, Nina called Artie’s office. She often left her cell phone in her car, and Sandy had been on her about using it frivolously, a finger’s distance from a pay phone.

His answering machine came on at the first beep.

‘‘This is the Law Office of Arthur Wilson. I have been called out of town and will not be able to return messages for some time. Please feel free to leave a message which I will return as soon as possible.’’ Artie’s voice sounded far away already.

She put in some more change. ‘‘Sandy? I just called Artie. His message says he’s left town! He’s due here in court! What’s going on?’’

Sandy said, ‘‘He left us a message too, but before eight o’clock so I didn’t get to talk to him. He says,’’ Nina heard the shuffling of paper, ‘‘there’s been a change of plan and he won’t be able to sit in with you.’’

‘‘Where did he go? What change of plan?’’

‘‘That’s all he said.’’

‘‘What’s his number?’’ Nina pulled a small notebook out of her bag and clicked a pen. ‘‘I’ll give that rat a piece of my . . .’’

‘‘He didn’t leave a number.’’

Nina clicked her pen uselessly. ‘‘Okay, Sandy, do me a favor. Go upstairs to his office and see what you can find out. Call me right back. I’ll be waiting.’’

She waited impatiently, the pleasure of winning her motion evaporating by the second. She had been depending on Artie to defuse her relationship with Jim, to take it back to a more even emotional and professional keel. Artie knew that she was depending on him for that, and to help her through the prelim. Where the hell was he? Should she ask for a continuance?

The pay phone rang once, a sharp sound in the empty hall. She grabbed it . . . ‘‘Sandy?’’

‘‘That’s what they call me.’’

‘‘What’s the story?’’

‘‘You aren’t going to like this.’’

Nina looked at her watch. ‘‘Just tell me.’’

‘‘I moseyed up there. The door was locked but the landlord was just opening it. I asked him what happened to Artie. He said he didn’t know, just that Artie had cleared out. He said Artie’s secretary just left with her things and is gonna file a claim against him.’’

‘‘What?’’ said Nina, dumbfounded. ‘‘But—he had a lease!’’ she said, and hearing herself, felt foolish. As if that guaranteed his stability.

‘‘He broke his lease. The landlord wants to know if he can retain you to sue Artie.’’

Nina said, ‘‘I can’t believe he would do this! He made a commitment!’’

‘‘The landlord let me scope the place out. Looks like Artie left all his books and furnishings, but the personal stuff is gone.’’

‘‘But what about the files?’’

‘‘Gone wherever Arties go.’’

‘‘He’s gone? For good?’’

‘‘He’s down the road.’’

‘‘Okay. I’ll call later. See what else you can find out.’’

‘‘Kick butt, now.’’

She hung up. It was a blow, a particularly galling low blow that had found a vulnerable place and pounded her. Artie had been a friend, but he had also become her support in this case. She would never have done that to a fellow attorney, and had never anticipated such a possibility. He’d abandoned her!

What the hell had happened to him over the weekend? She tried to remember some hint she had overlooked—if he’d ever mentioned some ongoing problem in his life, but he always seemed so happy. He loved his wife; he had some money socked away; he was enjoying his modest office.

A health problem? He wasn’t young, and she assumed his wife wasn’t either. Her mood wavered between anger and concern.

Jim appeared at the top of the staircase. He walked over to her, jaunty in his parka, his hair slicked back, carefree and healthy as a young man about to hit the slopes or make time with a fresh new babe. He pointed at his watch and said, ‘‘Eight forty-five. Right on time. You look good.’’

‘‘Thanks.’’ Her expression must have warned him, because he said abruptly, ‘‘How did the motion go?’’

‘‘We won.’’

‘‘Thank God!’’ Jim said. ‘‘All right!’’ His face expressed pure pleasure. ‘‘So we’re past this hurdle.’’

‘‘But there has been a change in plans. Artie’s been —called out of town. Suddenly. He won’t be able to join us.’’

‘‘Oh. Okay then.’’

‘‘I was relying on his experience, Jim. I think we ought to ask for a continuance.’’

‘‘You mean, wait to get this over with?’’

‘‘Yes, at least a few days, until Artie—until I can talk to Artie.’’

‘‘Wait a minute. We’re the ones that insisted on having the second hearing right away, like we did with the first. You said it was a good strategy.’’

‘‘I still think that. But I don’t feel comfortable without Artie. We’d already decided which witnesses he would take, and he was going to be a big help with the coroner’s office especially.’’