Exile: a novel (63 page)

But whom could he say this to?

No one. Right now, it was enough for him to know it. And he realized that just as losing Hana all those years ago had made him an emotional somnambulist, her return had reawakened him, forcing him to define himself by instinct, not calculation. He was not yet certain he was grateful—it was unsettling to be so aware of his flaws, his confusion, the raw edges of his emotions, even the simple truth that life cannot be managed. He had not felt so frightened yet so alive since the night Hana had walked out of his life.

Now she was back, to whatever end. And what that end might be was partly in his hands, and partly in the hands of unknown people who did not blink at murder.

At this thought, he looked about him, abruptly wary. But there was no sound except the bay and the rustling of the pine boughs above the bench. He could not fear for himself; the next few weeks would require all the resources he had.

Standing, he walked back to his apartment, his gaze focused on the path before him, his thoughts refocused on the hearing. In the last hours before dawn, he slept.

For this hearing, as before, David and Sharpe had filed their motions under seal, keeping them from anyone outside Judge Taylor’s chambers. David’s papers included a narrative of events in Israel and on the West Bank: the connection between Lev and Markis; their deaths and that of Muhammad Nasir; his meetings with Nasir and the mother of Iyad Hassan. They also contained hearsay, potential leads, evocative but inconclusive facts, and theories and suspicions that David could not prove—Hassan’s possible connections to Hamas and Saeb Khalid; Saeb’s mysterious trip to Iran; Saeb’s access to Hana’s cell phone, computer, and printer. As glue, he emphasized the Israeli government’s continuing refusal to reveal the fruits of its own inquiry. All of which seemed to perplex Judge Taylor without persuading her of what she should do.

When she said as much, David answered simply, “Dismiss the case.”

Her eyes reduced to slits, Marnie Sharpe controlled her tension by scribbling notes. From the end of the conference table, Taylor spoke with uncharacteristic heat, a sign of her own nerves. “Based on what
facts,
Mr. Wolfe? I can’t dismiss this prosecution on your web of surmise, however disturbing or even shocking some of it may be.”

David was prepared for this. “
That’s
the precise basis for my motion to dismiss,” he replied. “Ms. Arif should not be punished for my inability to go beyond ‘surmise.’ Ms. Sharpe now concedes the likelihood that Ben-Aron was murdered as the result of a breach in his own security. But how that breach occurred may only be known to the Israelis themselves. And someone—we don’t yet know who—killed the men who most likely were involved—”

“One by a suicide bomber,” Taylor interrupted, “the other by a sniper. How can I make the prosecution be responsible for
that
?”

“It’s not. But the prosecution
is
responsible for securing from the Israelis information relevant to Ms. Arif ’s defense, or face dismissal of the case.”

“In other words,” Taylor shot back, “Israel must tell you what it knows about this breach in security—or else. Even if your inquiry provoked the murders you now cite as a reason for dismissal.”

“This court dispatched me to Israel,” David answered firmly, “with instructions to go beyond waiting for its government to help me. I had no choice but to do that. I didn’t kill these men, Your Honor. Someone else did. Their identity and motives are material to the case against Ms. Arif.”

Judge Taylor sat back, gazing at David while she searched for a response. Sharpe’s glance moved from one to the other. “Where does that
leave your surmise about Hassan?” Taylor inquired more evenly. “Or Dr. Khalid? Am I supposed to require Ms. Sharpe to secure the cooperation of Hamas, Al Aqsa, and the Iranians? And if they fail to confess to whatever they’re supposed to know, do I just send Ms. Arif on her merry way? Just how far does your argument go?”

“As far as the Israelis, at the least—”

“And if they
do
cooperate?” Taylor interjected. “Let’s suppose the Israelis can confirm that Lev and Markis helped engineer the assassination. In and of itself, their complicity does not absolve Ms. Arif.”

David felt his confidence evaporating. “Suppose further,” he parried, “that Hillel Markis called the handler for Hassan and Jefar to leak the change of route. The handler either was or wasn’t Hana Arif. Which means that Markis knew whether she was innocent.”

“Not necessarily—at best, all Markis might know is that someone
else
was also involved.” Taylor’s tone became insistent. “To repeat, Markis is dead. No one thinks the Israelis killed him. And his murder doesn’t disturb the evidence against Hana Arif.”

“Such as it is. There are far too many loose ends here.”

“Yes. Not least in Tehran.”

“For all I know,” David said in desperation, “the Israelis know about
that,
as well. Markis aside, how can the United States put Hana Arif on trial without knowing more about what is clearly a very complex conspiracy?”

“How many months would
that
take, Mr. Wolfe? And how can you say with confidence that anything we discovered would help Ms. Arif?” Taylor leaned toward David. “John F. Kennedy has been dead for over forty years. The one thing that seems clear is that Lee Harvey Oswald shot him. Should we now exonerate Oswald because, in some people’s minds, the facts surrounding that core truth remain murky?

“You ask a lot, Counsel. But I should allow Ms. Sharpe to have her say.”

Sharpe, David thought, was so plainly dressed—black suit, white blouse—that her clothes seemed more like armor; her demeanor was so emotionless that this surely took extraordinary effort. “The court has made my points,” she responded. “Ms. Arif ’s motion to dismiss takes place in a shadowland of conspiracy theories and speculation. This prosecution, by contrast, is grounded in fact.

“
Fact:
According to Jefar, Hassan told him that Arif is the handler.

“
Fact:
Hassan had a piece of paper bearing Arif ’s fingerprints and cell phone number.

“
Fact:
Hassan’s cell phone shows a call to Ms. Arif’s cell phone.

“
Fact:
Ms. Arif can’t account for her movements in the critical hour before and during the assassination—”

“What about Dr. Khalid?” Taylor interrupted. “He seems to be Mr. Wolfe’s best alternative.”

“Based on what?” Though stiff, Sharpe had the composure of an advocate who had scrutinized this problem from every angle. “No one disputes where
Khalid
was during the assassination—with his and Arif ’s daughter. Despite this, we’ve questioned Jefar incessantly about Khalid; combed Khalid’s phone record and credit cards; mapped out his movements to the hour; inquired through the Israelis into his relationship with Hassan; and looked into why he traveled to America.”

“Then what about Arif ?” Taylor asked. “According to Mr. Wolfe, the apparent initiative for coming to America wasn’t hers.”

“
Apparent
initiative,” Sharpe emphasized. “Who knows what really happened? Perhaps the suggestion of Ben-Aron’s critics that Khalid shadow his appearances in the United States was cover for Ms. Arif, part of Mr. Wolfe’s elusive conspiracy—”

“Perhaps,” Taylor interjected with the glimmer of a smile, “it was financed by the Iranians...”

Sharpe spread her arms in a show of helplessness. “Or murderous right-wing settlers. But why would Khalid frame his own wife? That strikes me as a
very
dangerous thing to do.”

This was true, David thought, and it was the obstacle he returned to over and over. “But let’s revisit,” Sharpe continued, “the core of Mr. Wolfe’s motion: that Ms. Arif should go free unless the government of Israel tells him whatever it knows, despite the fact that the murder of two Israelis demonstrated that to do so might threaten its own investigation, and even Israel’s national security.

“I concede that I may not know all the government of Israel knows. I concede that they’ve refused to make their files, or their security personnel, available to the defense. But I’m certain that if the Israelis had information— or even leads—suggesting Khalid’s guilt, they would give that to us.” The swift glance Sharpe shot David contained a hint of triumph. “A few hours ago,” she continued, “the foreign minister of Israel assured our secretary of state that Israel has no such information. We will shortly file a letter from the foreign minister confirming that. I don’t know what more we can ask of Israel before commencing a prosecution for the murder of its prime minister.”

This last revelation, David knew, might doom his motion. “Israel’s
inquiry is ongoing,” he quickly interjected, “and there are clearly other facts to be discovered. The foreign minister is not omniscient.”

“Nor are we,” the judge retorted. “As so often in this imperfect world, we are stuck with what the law allows.

“I sympathize with your difficulties, Mr. Wolfe. This isn’t a domestic murder, but a transnational case with many complications. Nevertheless, given the evidence against Ms. Arif, complexity alone does not foreclose her prosecution.” Taylor modified her tone, a gesture of compassion toward an advocate about to hear a ruling that might doom his case. “If you come up with more concrete information, I’ll certainly reconsider. Absent that, this trial will go forward. Motion denied.”

A brief silence followed, perhaps the judge’s way of allowing David to absorb his disappointment. “All right,” she told him, “your other motion is hardly of lesser moment—your request to bar Mr. Jefar from testifying. Let’s hear about that.”

“Beyond dispute,” David answered crisply, “Jefar’s testimony is hearsay. He never met Ms. Arif. He never placed a call to her. He has no idea how Hassan got that slip of paper. By his own account, all he knows is what a dead man told him.

“If Jefar’s lying, the jury shouldn’t hear from him. If he’s telling the truth, he’s repeating the story of a terrorist who may have lied about all sorts of things—starting with his supposed allegiance to Al Aqsa, and ending with Hana Arif. How am I supposed to get at
that
—by cross-examining Hassan?

“If this is a frame, it’s bulletproof. The court has already turned down my request for more information. If one considers what’s left, it’s an injustice worthy of Franz Kafka: Ms. Sharpe seeks Ms. Arif ’s execution without offering a single witness who can even claim to know whether she’s innocent or guilty.”

For a moment, Judge Taylor let David’s words hang in the air, affording herself time for reflection. “What do you say, Ms. Sharpe?”

“That every case of hearsay testimony presents the difficulties cited by Mr. Wolfe. That’s why hearsay is generally barred—its credibility cannot be tested on cross-examination. That’s also why there are exceptions for testimony like Mr. Jefar’s.” Sharpe’s tone became more confident. “Jefar’s statement regarding Ms. Arif admitted his own complicity. That’s a classic indication of credibility, falling under the core exception to the hearsay rule: an admission against his own interest, exposing him to punishment.”

“What interest?” David asked, his voice incredulous. “Jefar was arrested
at the scene with a motorcycle jammed with explosives. A hundred or more witnesses saw him try to blow up Ben-Aron. The only impact of his ‘admission against interest’ is that he
lessened
his punishment by avoiding execution.”

“Jefar’s statement,” Sharpe responded, “need not stand on its own. It’s buttressed by Hassan’s phone call to Ms. Arif’s cell phone, and the slip of paper with her prints on it. Neither of which he conjured up.”

“Could you try the case without him?” Taylor asked.

“I could not,” Sharpe acknowledged. “But that’s not the question. All that’s before the court is whether the rules of evidence allow Jefar to testify. They do.”

Taylor’s air of command had withered; to David, she looked unhappy and trapped. “I must tell you,” she said to Sharpe, “that this is far from the strongest prosecution case I’ve ever seen. That bothers me. I think it should bother you. But with respect to Mr. Wolfe’s motions, the law falls on your side. You’ve got enough for a trial, and that’s what we’re going to have.” Turning to David, she added, “The trial will begin two weeks from now, barring a surprise. You’ve had all the discovery I can give you.”

For the first time in his memory, David could not offer up the formulaic thanks. “Thank you, Your Honor,” Sharpe said for them both.

Listening to David’s account of the hearing, Hana’s lips parted.

“I’m sorry,” he finished.

“I can see that on your face.” Hana looked down, absorbing what he had told her. “I, too, tried to hope. But I did not expect you to win. My comfort now is knowing that no lawyer could do better.”

David tried to smile. “You haven’t seen the other lawyers.”

“I don’t need to.” Hana’s face was serious. “Whatever happens in this courtroom, I will feel much better knowing that you’re there.”

But what about Munira?
David wanted to ask. Instead, he absorbed, yet again, the fact that he was forced to defend this woman while constrained by rules most likely to seal her conviction.