Damage (9 page)

“I’m glad for you. But who’s Matt?”

Jenkins just barely did not roll her eyes. “Matt Lewis,” she said with exaggerated patience. “One of our DA inspectors. Not to mention my long-standing boyfriend, not that that’s important.”

Farrell looked chagrined. “I guess the politician in me should have remembered that,” he said. “Or known it in the first place. But I’m just naturally hopeless at that stuff. I can’t help it. Matt Lewis. I’ll remember from now on.” Then, with a smile, “What’s he look like?”

“Clark Kent,” Jenkins deadpanned, “without the glasses. But the point is he’ll bring Ro in on any charge we want and there you go.”

“No, there we don’t go.” Farrell was shaking his head back and forth. “Guys, so we hold him ten minutes and look stupid in the process. Besides which, we’d get crucified in the press. But that’s not the point either. Bottom line, we don’t do that. It’s not happening. End of discussion. You’re going to need . . . no, we’re going to need a real offense.”

“Murder ought to do it,” Glitsky said.

Farrell sighed. “Get me
any
evidence, and it’s done, Abe. I promise.”

Glitsky looked over at Jenkins and she took the lead. “Wes, hear me out, okay? This is where you’ve got discretion. You can make this call on your own.”

Farrell suddenly showed his fatigue, bringing his hand up to his head and rubbing his eyes before he pressed his fingers to his temple. In fact, feeling more than a degree of responsibility for Felicia Nuñez’s murder, he hadn’t slept much after Glitsky’s call the night before. “How do I do that, Amanda? Make that call?” he asked.

“You have Abe bring him in on the Nuñez murder. That’s not harassment. That’s a real charge that (a) he’s guilty of, and (b) a vast percentage of the public will buy.”

“Yes, maybe, but . . .”

“No ‘buts.’ Listen. You’re worried because in the normal course of events, there’s nowhere near enough to bring him to trial. Right?”

“Try
nothing.
”

“Well, not exactly nothing. But even so . . . so what? That’s not the point.”

“It’s not. Then what is?”

“The point is that it doesn’t matter if you’ve got enough to get him on Nuñez. You’re never going to have to get to Nuñez. At least we’ve got him upstairs behind bars while his lawyers gear up for the retrial, however long that is. Meanwhile, Ro’s off the street and nobody else gets killed.”

Farrell slumped, sitting back, and let his head rest on the cushion behind him. He sighed again. “Did I actually expend energy to get elected to this job?” he asked. “And can either of you tell me why if I did?” Then, abruptly he sat up. “It’s a lovely idea, Amanda, but we’ve got this old-fashioned notion called probable cause, without which Mr. Curtlee’s out again in forty-eight hours, and P.S., Lieutenant Glitsky here gets sued for false arrest.”

“I think we’ve got probable cause,” Jenkins said.

Farrell gave her the bad eye. “All right, let’s be wildly imaginative and say you do. Next up, as you know, is a preliminary hearing. Maybe you’ve heard of it? A guy gets arrested, charged by this office, makes it over the probable-cause hurdle, then there’s a hearing in ten days to look at the evidence. If it’s not there, he walks.”

“Wes, come on.” Jenkins came forward in her chair. “How many PXs”—preliminary hearings—“have you seen where they let the guy go? Zero, am I right? Maybe one in a decade. It never happens. Standard of proof is again only probable cause, ‘a strong suspicion . . .’ ”

Farrell patiently held up a hand. “Please, spare me. I know the law. The law reads that probable cause is defined as ‘a strong suspicion in the mind of a reasonable person that the offense was committed and that the defendant committed it.’ ”

“So, think about it,” Jenkins continued. “We’ve got Ro’s past conviction, the connection to Nuñez, the threat of Nuñez coming up at his retrial, the shoes . . . my point, though, is that any reasonable person—which includes most of our judges—is going to strongly suspect Ro did Nuñez, and that’s all we need. It’s a simple call, Wes, and it’s all yours.”

“It’s an unacceptable risk,” Farrell said.

“It’s a small risk,” Jenkins countered. “Insignificant. Less than crossing the street. But if it’s beyond your comfort level, you’ve still got the grand jury.”

Farrell knew that this was true, and in fact had already contemplated it, though it, too, of course, had risk associated with it. If he went and sold his weak case and got a grand jury indictment on Ro in the Nuñez murder, then he could avoid the possible pitfall of a preliminary hearing. A grand jury indictment obviated the need for a preliminary hearing; by itself, it was authority enough to bind a defendant over to trial. But if Farrell went that way, Ro’s attorneys, as was their right, would demand the trial begin within sixty days, and there would be no continuance. Farrell could ask the court to join the cases for trial, but the way things were going with Baretto, that motion might well be denied. Under those circumstances—that is, if Wes prosecuted Ro for the Nuñez murder only—a San Francisco jury would never convict him. He’d be freed again. Within two or three months. Making his retrial for the rape and murder of Sandoval—already hugely problematic—logarithmically more difficult.

“But the grand jury,” Glitsky said, “you’re still looking at ten days, two weeks before they could even get to the indictment. Ro could do a lot of damage in that time.”

“Which is why our vote’s for an arrest and indict before the prelim,” Jenkins said. “Short and sweet. Take him out.”

When the meeting broke up, Glitsky went back upstairs to his office with a couple of ideas rattling around in his brain, both of them having to do with Arnie Becker. He wanted the identification of the murder victim to be rock solid and also to be accomplished as soon as possible. If the dead person was not, in fact, Felicia Nuñez, then the theory that Jenkins and he were betting on would not fly—there had to be an immediate connection to Ro Curtlee, and they had to establish it quickly. Possible dental records were okay, but Glitsky knew that he could wait a very long time for dental records, to say nothing of the fact that finding the victim’s dentist so that they even had a chance at a comparison might be flatly impossible. So they’d have to try to find another way to identify her.

But when he reached Becker—the man apparently didn’t need to sleep—the arson inspector was at least a step ahead of him. The identification of the victims of fires was one of the inspector’s most critical tasks. And over the years, Becker had picked up more than a few tricks. “It’s her all right,” he said. “Nuñez. When she cooked, her hands closed up into fists like they do. You noticed that, I’m sure.”

“Sure,” Glitsky lied.

“So I had the morgue pry ’em open, and as I’d hoped, we got four just-about-perfect fingerprints, two on each hand. So I had’em run them in the INS database . . .”

“On a Saturday morning?”

“I got a pal I called in records. So anyway, he loads in the prints and, bingo, up pops Felicia Nuñez.”

“You ever want a job in homicide,” Glitsky said, “just give me a call.”

“I’ll keep it in mind, thanks. But I’m happy where I am.”

“I can see that. Getting to sleep in on the weekends and all like you do.”

“Sleep’s overrated,” Becker said. “You said there were two things?”

“The shoes. Or maybe the shoes.”

“What about ’em?”

“Do we know that the rubber or plastic near her feet came from her shoes?”

“Oh yeah. When you told me last night they might be important, I brought ’em home to my own lab and checked ’em out this morning. They’re the soles from an Adidas tennis shoe, the Honey Low, retails around fifty-five bucks. Size seven, by the way. The top burned away completely.”

The fire scene was on Farrell’s way driving back home from work.

He passed by once without really seeing it, although the yellow police tape must have stuck somewhere in his preoccupied brain, because half a block beyond the apartment building, the location registered. He checked his rearview in a double take, hung a U-turn at the next intersection, and drove back down, parking across the street in a space cleared by the tape.

Glitsky and Jenkins had kept at him for nearly an hour, until in the end he had run out of arguments. Which was not to say he’d made any decision, other than to go home for the afternoon and lie around the house in comfortable clothes before he had to go out this evening and give yet another speech somewhere about something important. Maybe even get in a little sack time with his girlfriend—stranger things had happened.

Now, at a few minutes past noon, the weather had turned foul with a gusty wind blowing around a gauzy drizzle that might as well have been rain. Farrell rolled his window down and looked at the shattered glass in what used to be the windows of the upper left-hand apartment.

Try as he might, he couldn’t get the place to speak to him.

He didn’t go to crime scenes. He was a lifelong defense attorney, and that was a job for the police and the prosecution.

And yet here he was, a prosecutor and top law enforcement person in the city of San Francisco. The job was bunching at him from every direction like an ill-fitting suit.

Although before he’d actually run for DA, he had been notorious for his oft-stated belief that all defendants were factually guilty of whatever crime they’d been charged with, his professional life had always been about getting these people off. Or more commonly getting them a plea bargain they could accept. In the working defense attorney’s world, the objective rarely was to get your client off. Mostly you tried to reduce a charge or a sentence or a bail. Because it happened so infrequently, if at all, no one gave much thought to the idea that a client might actually be innocent.

So the fact that Ro Curtlee probably killed this Nuñez woman didn’t make the impression it might have on Farrell. He’d worked with murderers before as clients. He would probably draw the line at saying that they were nice people in general, but he’d formed a sort of attachment with several of them based on their common humanity. They often had relatives they cared about—mothers, girlfriends, children. They sometimes felt bad about why they’d done what they did. They were not all irredeemable souls.

So the tectonic plate of Farrell’s natural-born inclination and culture was slamming up against that of Glitsky and Jenkins. Talking with them this morning, trying to be accommodating and receptive to their arguments, he could not help but be aware of the Everest looming between them.

To Farrell, the law was a set of inflexible, impersonal, and objective rules that society adopted to settle disputes. There was little room for discretion; what you usually did was what you always did. Morality didn’t much play into it. And the law was specifically not a tool that you used selectively to arrest some people but not others who did the same thing.

Both Glitsky and Jenkins apparently had no trouble being creative within the rules to get Ro Curtlee back into a cell. Farrell believed that if it couldn’t be done in the normal course of business, then by definition it was wrong. And yet Glitsky and Jenkins clearly thought that they had the law and, more important, morality on their side.

And this Farrell knew to be a very slippery slope, and very dis turbing.

While he was losing sleep last night over the degree of responsibility he bore for the release of Ro Curtlee and the subsequent death of Felicia Nuñez, he’d finally come to terms with his conscience because he knew that he had respected the law and applied it fairly. That was what he’d been elected to do. That was his job.

But what about this suggestion that he use one of the legal tools at his command—the grand jury or a preliminary hearing—to get Ro back behind bars? Surely that would be worthwhile, but would it be right? The man had already been convicted of rape and murder, and his successful appeal to the Ninth Circuit never even addressed the actual fact of his guilt for those crimes, which was never really in doubt. And if he had come from a poor family, Farrell knew that he never would have been able to make his $10 million bail, and he would still be in jail awaiting his retrial.