CUTTING ROOM -THE- (42 page)

Through dogged detective work, Manny Alvarez had identified Talbot Lunders as a suspect in Holly Skole's murder. Marie Modic — the witness who was now no longer going to be able to testify to anything because she was dead — had ID'd Talbot in the still-shot of the Menace surveillance video as the man she'd talked to the night Holly went missing. Marie Modic had given Manny the name ‘T'. She'd ID'd the Mercedes key. And, most importantly, she had given Manny the name Automotive Experts on the Mercedes key ring, which was what led Manny to the car dealership and Abby Lunders's Benz. From there, Talbot Lunders was ID'd through his mother's insurance records and then his driver's license photo. Add in the video of Holly seen getting into the Benz, and there was more than enough probable cause to believe that the Mercedes might contain evidence of a crime, to wit: murder, and more than enough evidence to support the issuance of a warrant to search the car. Judge Paulus, the on-duty Circuit Court judge, had thought so, too, which is why he'd signed off on it. Perfect.

Except for one little, tiny, major fucking problem. Like the misspelling in the thesis title, it all came down to one word.
One cursed word …

So that the whole system is not undermined because one judge's idea of probable cause differs from another's, a warrant that's been signed off on by a judge is presumed valid. End of story. The only legal way for a defense attorney to attack a warrant's probable cause — or lack thereof — would be to prove that the detective lied about the facts or intentionally misled the judge in the affidavit. In other words — fraud. Talbot Lunders's misplaced argument was that since Marie Modic could not be questioned by defense counsel about what she had witnessed, any hearsay statements she gave Manny Alvarez were suspect and the warrant should therefore be tossed, along with any evidence that was found in the Benz. And since the evidence in the Benz was what led Manny to search Talbot's boat, the fibers found there would go, too. There was no way the circumstantial case against Talbot Lunders could survive if the warrant was tossed.

The warrant had to survive.

And Vance had to avoid calling attention to the one-word landmine that was waiting to be stepped on. The fact Justice Joe hadn't raised an obscure, hot-button issue that could get his client off didn't mean an experienced judge wouldn't see it.

‘The law is clear,' Vance said, carefully choosing his words. ‘In order to challenge the warrant by attacking the veracity of Marie Modic's statements, the defendant must show that the detective intentionally, or with reckless disregard for the truth, included a false statement in the affidavit. There's been no evidence presented here today to support that, or that Detective Alvarez in any way misled Judge Paulus into signing the warrant. None whatsoever, Your Honour. The defendant has not met his burden and the warrant must stand. The defense can attack the veracity of a witness's statements at deposition and at trial, but not through a motion to suppress.'

It was like affirming the sturdiness of the roof of a house that's got water damage in its basement. His argument was legally correct, and the roof was definitely sound, but there still lurked a major problem somewhere. If you started to rip apart the walls, you just might see the rotten plumbing.

Judge Becker stared at Vance, her head slightly cocked, as though she was waiting for him to say something more. She waved off Joe Varlack, who'd opened his mouth to respond. ‘Of course, that can't happen in this case, Mr Collier,' she remarked coolly, ‘because Ms Modic won't be giving a deposition or testifying at trial. She's dead.'

‘She was murdered, Your Honor.'

‘Sad, but for purposes of this hearing, irrelevant. So the defense is stuck with what they're stuck with?' the judge mused. ‘You get what you get in Detective Alvarez's warrant and you don't get upset.' She leaned back in her chair and tapped her finger on her copy of the motion. ‘Ms Modic is dead and the defense can't question her about what she saw or how she saw it. They have no idea whether she was a
reliable
witness because they've never met her. They cannot assess her
credibility
,' she finished, deliberately enunciating her words.

Shit.
Vance looked down at his notes on the podium. A drop of sweat had fallen from his forehead on to the paper. He watched it roll down the motion, smearing ink and distorting words as it did. The house was still standing, but here came the city inspector, knocking on beams and probing dark corners, looking for the damage she knew existed inside.

The judge pointed her pen at Manny, who was seated at the state's table. ‘Detective Alvarez, you're still under oath. I have a question or two. Why did you refer to Ms Modic in your affidavit as “an anonymous source”? Why was she not named?'

Bing.
Vance closed his eyes. The judge had spotted the misspelling in the title, too. The building inspector was now inside the house and headed for the basement stairs.

The questions that Vance had feared were now flying rapid-fire across the room. And of course, all that activity woke up Justice Joe from the nap his brain had been taking. Vance could see him flipping through notes, writing things down, his thin, yellowed ponytail draped over his shoulder like an old cat's tail. He may not yet know exactly what the issue was, but he'd figured out there was one.

‘Because she was terrified that the defendant might find her if she was identified through the warrant,' Manny explained. ‘Given what'd happened to Holly, I can't say I blame her. If Marie Modic hadn't escaped through the back door of that club that night, it might well have been her murder I was investigating.' He looked over at Talbot Lunders, who was staring straight ahead, unmoved. ‘And now look how things turned out for her.'

‘Let's not go there, Detective.' The judge sighed and peered over her glasses at Vance. ‘Therein lies the problem, and you know it, Mr Collier. Oh, you definitely know it.'

Vance turned red. One cursed word had changed absolutely everything in an otherwise airtight search warrant. A warrant that had yielded basically the only physical evidence in a circumstantial case.
Anonymous.
Out came the sledgehammers. The walls were coming down.

‘A search warrant is a powerful instrument,' the judge continued, choosing her words just as carefully as Vance had, but he knew that was for the court reporter's benefit. She was laying a record for the inevitable appeal. ‘It allows the police to go into a person's home, business or vehicle and search for evidence of a crime. The affidavit that accompanies a search warrant must establish that probable cause exists to believe that, one, a crime has occurred and, two, certain evidence of that crime will be found in the location to be searched. Probable cause is established by facts. Those facts have to be set out in the detective's affidavit, so that the judge can assess if there is probable cause just by looking at the affidavit itself. So the detective doesn't have to drag before the judge every witness who provided him with information, the courts have established rules regarding the credibility of witnesses.

‘The problem we have with Detective Alvarez's affidavit is that probable cause was established by the use of an anonymous source, namely Marie Modic. Ms Modic's identity was not made known in the affidavit. It therefore was not made known to Judge Paulus. The courts have recognized a distinction between
named
citizen informants and
confidential
informants or
anonymous
sources. Information provided by a
named
citizen informant is presumed to be reliable, but information from a
confidential
informant or
anonymous
source is not. It may be an order of semantics in the case at bar, but that's the law. The reliability of a confidential informant or anonymous source must be established independently and specifically set out in the affidavit. Particularly dubious is any information provided by an anonymous source, which is the legal equivalent of a tipster calling into the 911 line. There's no way to independently verify the tipster's credibility because you don't know who he or she is.

‘In his affidavit, Detective Alvarez relied on the hearsay statements of an anonymous source — a source whose identity he actually did know, but was understandably trying to protect. Unfortunately, though, the reliability of this source was not established in the affidavit.'

‘Your Honor,' Vance protested, ‘I know where you're going with this and I have to interject before you get there. Even if Marie Modic was improperly named as an anonymous source by Detective Alvarez, it was an unintentional oversight. As you said, it's semantics. She was obviously a citizen informant, because he
knew
her identity. But even if the court wants to treat Ms Modic as an anonymous source, the information that she provided
was
independently verified by Detective Alvarez when he searched Automotive Experts records and ultimately discovered Talbot Lunders's identity.'

The judge shook her head. ‘That's not enough independent corroboration for me.'

Manny felt his gut churn. The fast legal banter was like listening to two people argue in Russian — he wasn't getting all of it, but he'd quickly figured out things were bad. It was hard enough to be sitting in this witness chair helplessly listening to suits duke it out over legal semantics while precious seconds ticked away and the world fell apart a couple of hundred miles to the north, but to see his case unravel because of some obscure legal bullshit that he maybe should've thought of but didn't when he wrote up a damn warrant months ago was too much to take. All he saw was Daria's face, all he could hear was the message she left for him three nights ago. He had to find her. Everything else seemed trivial in comparison; it was time to make everyone understand that.

He stood at the state's table. ‘Your Honor, Judge Paulus knew who Marie Modic was. He knew she was not just some tipster off the 911 line. I told him her name, all the information I had on her. He asked me why she was anonymous. And I told him what I just told you, about her being scared and all, and he nodded and said, “Smart.” Then he signed the warrant.' Manny turned to Vance. ‘I'm sure Judge Paulus would remember.'

Judge Becker shook her head again and picked up the affidavit, dangling it before her as if it smelled bad. ‘The law only lets me look at the four corners of the warrant. Any conversation you had with the issuing judge is outside these four corners.'

Vance was shaking his head in resignation and Manny knew it was over. ‘This is crazy,' Manny yelled. ‘I've been a cop for twenty-three years. This is totally crazy. Are you kidding me, Collier?'

‘This is the law. Take it or leave it, gentlemen. Or better yet learn it so that these problems won't lead to the downfall of your cases. Maybe Ms DeBianchi stayed up in Disney for a reason, because she didn't want to come back to the mess she'd left here.' The judge sighed. ‘This court cannot overlook that the state has already committed serious Brady violations, including withholding evidence from the defense about similar murders. This court is deeply disturbed by the state's lack of candor, and that includes you, too, Mr Collier. I watched you dance around the issue of Ms Modic being an anonymous source because you thought you could get away with it. Since Mr Varlack didn't think to bring it up you weren't going to, either. Well, the court doesn't work that way. So if I toss this warrant, tell me right now — what is the physical evidence you have against Mr Lunders?'

Vance rubbed the back of his head. He didn't want to go into what he had or didn't have in open court, but the judge was beyond pissed. ‘We have torn fibers from the victim's shirt that were found in the defendant's boat, along with the defendant's attempt to flee the jurisdiction before his arrest.'

‘That's it in the physical evidence department, then? You don't have a smoking gun out there, do you? Or a video of the defendant with Ms Skole's dead body? Or, given the state's previous conduct, a video of
someone else
with Ms Skole's dead body? As far as your fiber evidence goes, perhaps Ms Skole and Mr Lunders had a passionate interlude on that boat and neither wanted to take the time to open a button.'

‘Judge, Ms Skole was raped and murdered. The court's comments are in poor taste.'

‘Don't play pious with me, State. And don't think for a minute that that's not how the defense will be explaining it to a jury. There was no blood or bodily fluids or DNA evidence on those fibers, was there?'

‘With all due respect, I would think the defense would come up with their own theory of the case, instead of the court assisting them.'

‘I am telling you how I see your evidence so far,' the judge replied icily.

‘Thank you. I'm quite sure Mr Varlack appreciates that.'

‘So
this
is what I am going to hear at trial?
This
is your case?'

‘I really didn't think I would be trying my whole case in front of you today, Judge. That's not why we're here.'

‘Get over your shyness, Mr Collier. If you can't share the facts of your case with your judge, who can you share them with?'

‘This was supposed to be argued by Ms DeBianchi, Your Honor.'

‘Get over that, too. You're the quarterback now and you've just been handed the football. You're running out of time to make a final play. Give me your best Hail Mary.'

The walls began to crack, fanning out through the entire structure, toppling the floors, as the house with the sturdy roof imploded.

‘The defendant signed off on shipments to his company of sulfuric acid. That was the chemical used to burn off Ms Skole's feet.'

‘Interesting, but I think your average science teacher can buy sulfuric acid.'