Fox is Framed (12 page)

Finally she sat down. Judge Liu checked the clock, instructed the jurors not to discuss the case, and told them to return at 9:00
am
.

~ ~ ~

After court, my father, Dot, Nina, and I went back to her office, and Teddy went home to spell Tamara, telling Lawrence that he and Dot should stop by on their way back to San Rafael. He just nodded, his mind elsewhere. Nina went to her desk to return phone calls and e-mails, while my father and Dot went to sit in the conference room. I joined them, using the long table to go through the exhibits Crowder was likely to introduce tomorrow afternoon when she called Shanahan to the witness stand.

My father paced distractedly. Again and again I glanced up at him, but he seemed not to notice my gaze.

Finally he said, “They're going to come after me for Russell even if I beat this.”

“They're likely to.”

Closing his eyes, he nodded, as if he saw his fate playing out through the windows and couldn't bear to follow it. He glanced at Dot, then back at me. “What about that deal? I plead guilty to Caroline, time served. And they agree not to prosecute me for Russell.”

Dot looked away as my eyes sought hers. Her face was ashen with regret and fear, and I saw that she knew, as I did, that it was too late. I was stunned, though I shouldn't have been surprised. Not only had Nina warned me that his courage might falter, but I'd been in the same situation time and time again with clients who'd turned down reasonable deals when they had the chance, then on the eve of trial had suddenly gotten cold feet and wanted to plead out. But, by then, it was always too late. It would be no different here.

“There was never an offer not to prosecute you for Bell. The time served offer was for this case only, and it was only good until the probable cause hearing,” I said as gently as I could. “And that was before Bell was killed. The DA's ready to try the case, and Crowder's in a better position now than she was when she initially made the offer. At this point, I'd be surprised if she'd agree to any deal that didn't involve you going back to prison.”

“He's not going back in,” Dot said. “You're not, Lawrence.” She turned to me. “He's been waking up every night with nightmares. ‘It's happening again. It's going to be just the same.' I keep telling him that it's not. You've got a good lawyer this time. You've got your sons, standing behind you. And
me
.”

He seemed not to hear her. “You've never even asked if I killed her. Over and over again you hear all these terrible accusations, and you don't say anything. Are you afraid?”

“Even if you had murdered her, I'd still love you. I wouldn't like it, but I'd have no choice.” Her voice was quiet. She stared him down. “I'll marry you tomorrow if you want me to prove it.”

He returned her stare, then, as if seeking an easier target for his insecurity, he turned to me. “What about you, Leo? What would you think if I pleaded guilty?”

“I'd think you were making a decision you'd regret.”

He responded to my tone. “You secretly despise any defendant who'd even think about taking a plea, don't you? Surely you must have had innocent clients plead out before.”

“So they said. I didn't believe them. Look, the trial's just started. Teddy always told me that when you start acting from weakness, the jury can smell it. And once they smell weakness, they usually convict. I'll talk to Nina if you want, but in my opinion you need to give her a chance to do her job.”

He gave a nod. Dot turned with a chagrined look and went to the window. I crossed the hall and knocked on Nina's door. “He wants you to ask for a deal.”

She pushed back from the desk, her shoulders slumping. “But he hasn't even heard my opening.”

“He's having flashbacks to the first trial.
She
wants him to fight, even though she was all for him taking a plea before. I told him there's no offer on the table. He wants to know if he can get time served and a nonprosecution agreement for Bell.”

“Snowball's chance.”

“That's what I said. But he wants you to make the call.”

She picked up the phone, dialed. “Angela, it's Nina Schuyler. Look, my client's out on the window ledge. I guess your opening was pretty good, because it even convinced him. He's worried that even if he wins, you're going to try to nail him for the Russell Bell thing. He just wants to be done. How 'bout he pleads guilty and you let him walk away, time served, no prosecution on Russell Bell.”

Nina listened, clicking through her notes on the computer. Finally she broke in. “Listen, Angela, I get all that. Just tell me how much time he needs to do, so I can tell him.” Rolling her eyes. “I'll pass the word. And hey, great job today.”

She hung up. “Ten years on this case, he takes his chances on Bell. Actually, a better offer than I thought we'd get. He has a chance to get out of prison before he dies.”

“I'll tell him.” I went back across the hall to the conference room where my father stood at the window, his arm around Dot's shoulders, and told them.

He nodded in resignation, as if he'd known all along that this was how it would be.

Chapter 15

Nina began by describing the crime from the point of view of the defense, telling of the “male intruder” who, after entering the apartment, had raped Caroline Maxwell. “She had bruising on her thighs, wrists, and neck, a skinned knee. The autopsy found a broken nail.

“Afterward, the rapist seized a nearby baseball bat and savagely beat her, focusing his blows on her face. The first few would have been fatal but he dealt her many more.” She gave brief treatment to the fingerprints wiped from the baseball bat and my discovery of the body.

I gave a tiny nod of acknowledgment but kept my gaze focused on Nina. “Despite evidence showing that this murder must have been committed by a stranger, the police from the start focused their energies on Lawrence Maxwell. Within hours, they arrested him. They never considered any other suspect for this crime.

“The presence of the intruder was immediately written out of the story the police and prosecution chose to tell. Mr. Maxwell was inserted in the rapist's place, the easiest answer for the least possible effort. But an answer without any regard for the actual facts of the crime, and without any thought for the safety of the community in which a killer continued to roam at large.

“In Mr. Maxwell's first trial twenty-one years ago, there was no mention of the physical evidence showing that Caroline Maxwell had been raped. That evidence, as you've heard, was withheld from the defense. The biological evidence, the semen that was found in her body, was subsequently destroyed. We can't know whom that evidence would now have pointed to.

“We know for certain that the person who raped Mrs. Maxwell was not her husband. The blood type of the individual who left the semen in her body was recorded in the original lab report that was hidden from the defense. Unlike the jurors in the first trial, you'll have the chance to examine the carbon copy of the original report that was discovered in the medical examiner's files, and you'll see that the man who left the semen in Caroline Maxwell's body is blood type A. Mr. Maxwell's blood type is O. You don't need an MD-PhD to see that's not a match.

“Twenty-one years ago, of course, Mr. Maxwell couldn't show that the blood types didn't match, because he didn't have the evidence or the report. It was hidden from him intentionally by Gary Coles, the DA, who saw that it would undermine his case. The result was that Mr. Maxwell never learned that the semen of another man had been found in his wife's body, that she'd been raped before she was murdered. Mr. Maxwell was convicted. Of course he was. He was convicted as a result of the worst kind of cynical abuse of power, the kind of miscarriage of justice that simply isn't supposed to happen in the United States.

“Well, it happened here.”

Next, she summarized Lawrence's relationship with Bell in prison, including his role in helping free him and the state's decision not to retry Bell. “But there's one problem. Bell confessed to Mr. Maxwell that he'd committed the crime he was in prison for. Upon Mr. Maxwell's release, he learned that Bell had gone to work for a prominent public servant.

“Mr. Maxwell, feeling responsible, attempted to alert Bell's employer of the danger of harboring such a man. In response, Bell invented a story about Mr. Maxwell supposedly confessing to
him
in prison. This was a blatant attempt to discredit Maxwell so that Bell could go on enjoying his freedom without interference. So far, it has worked. Bell is an opportunist and a liar who will say anything to avoid facing the consequences of his crimes. This includes telling the worst kind of lie against the man who gave him the freedom he now abuses.”

This was the weakest part of Nina's opening, the Achilles' heel of our defense. We still lacked a satisfactory motive for Bell to invent the confession, unless you counted my father's near admission that he'd blackmailed Bell, but of course we couldn't use that.

Crowder sat frowning on the edge of the chair, her jaw tight and her eyes on Nina. It wasn't lost on her, or on me, that at every opportunity Nina was speaking of Bell in the present tense, as if he were alive and would be testifying in this trial, setting the stage for the jurors to blame the DA for failing to bring him into court. Nina walked right to the edge, never quite crossing the line the judge had drawn.

“Finally, you'll hear that in seeking to retry Mr. Maxwell, the police and the district attorney's office did little more than pick up the case Gary Coles had prosecuted and run the old film back through the projector. Mr. Maxwell was the only suspect they considered. From the moment of his exoneration and release, the focus of the investigators was to build a case against him so that they could put him back behind bars. Just as in nineteen eighty-three, the police disregarded the possibility that someone else might have committed this murder. Recognizing that it was too late to solve this crime, they went for the low-hanging fruit.

“It wasn't an investigation at all. It was a setup. They had their answer before they started. The goal was to drum up just enough evidence to bring this prosecution, save face, and cover up the true seriousness of what Assistant District Attorney Gary Coles did. Gary Coles may be dead, but he charted the course we're following. Detective Shanahan will tell you that he didn't have much time to investigate, that he had to choose his priorities. When you listen to his testimony today, ask yourself what those priorities were.

“I expect Detective Shanahan to testify that he began with the assumption that Mr. Maxwell was guilty, and proceeded from there. He focused his efforts on interviewing people who'd known Mr. Maxwell in prison, inmates and corrections staff, asking them each, did Maxwell ever say anything about murdering his wife? Did he confess? He went down a long, long list of those who knew my client during his more than two decades behind bars, until he found someone who had a motive to answer
yes
to his questions. That was Russell Bell.

“The evidence is going to show that Detective Shanahan didn't have to spend his valuable investigative time trying to dig up a snitch. The police had other options.” She spoke of Keith Locke, the son of our mother's lover, now serving a sentence in Pelican Bay for gunning down Teddy in a crowded restaurant a few blocks from city hall just as Teddy was assembling evidence that suggested he'd raped and murdered Caroline Maxwell twenty-one years ago.

“Detective Shanahan didn't for a single moment entertain the possibility that the man who shot Teddy Maxwell in the head just as he was about to file a habeas petition implicating him in Caroline Maxwell's murder might be the killer. Instead, he set about repeating the mistakes and reliving the deceptions of Gary Coles. Detective Shanahan went looking for a snitch. Lo and behold, he found one.

“As to this supposed confession, you'll hear Mr. Maxwell testify that he never spoke those words. Rather, he has steadily maintained his innocence. He'll tell you that he did not commit this crime, and he'll tell it to you in his own voice.”

A toe over the line, but she went on before Crowder could object.

“Russell Bell is a liar, and when Mr. Maxwell gets through testifying, you'll understand Bell's motivation. When you've heard the evidence, you'll see this prosecution for what it is: a sad refusal to acknowledge the mistakes of the past, a waste of resources, and a destructive misuse of the state's power. When you've heard all the evidence in this case, I'm confident that you'll give Lawrence Maxwell the justice he deserves and find him not guilty of this crime.”

~ ~ ~

“Please state your full legal name for the record.”

“Lieutenant Neil James Shanahan.”

Crowder proceeded crisply through the preliminary steps of her examination, Shanahan, for the most part, repeating the testimony he'd given at the prelim. His manner, however, was quite different from that of his testimony then. At the prelim, with only Judge Liu as his audience, he'd come across as stiff, a little arrogant. Now, with each answer, he glanced at the jurors as if seeking their permission and approval, speaking as if to them rather than to Crowder. Within a few minutes, I knew that on cross Nina was going to have her work cut out.

Crowder used him to lay out the case from beginning to end, starting from his review of the old investigative file and the documents it contained, the police reports, the crime scene photographs blown up to poster size, the autopsy report and forensics analysis, and finally, the evidence that had been withheld from the defense. Like any competent trial lawyer, she was careful not to gloss over the bad facts. She had Shanahan go through the details of Gary Coles's misconduct and the evidence he'd withheld, all with the goal of showing that it didn't matter, that the new evidence also established Lawrence's motive of jealousy.

She also sought, point by point, to rebut Nina's opening statement, especially the accusation that Shanahan's investigation had focused single-mindedly on my father. “Do you agree with Ms. Schuyler's characterization of your investigation as a sham designed to drum up evidence against this defendant?” Crowder asked.

“I do not.”

“What suspects did you consider?”

Shanahan spoke to the jurors. “I made a point of starting from zero, as if this crime had happened yesterday. I didn't want to be tainted by any assumptions or mistakes from the past.”

“What evidence, if any, did you have that was not available to the investigators twenty-one years ago?”

“From the start, I knew that Mrs. Maxwell had been having an affair with a married man at the time of her death. I had a set of pictures that were taken of them together, which had been filed by Maxwell's lawyers as newly discovered evidence. Evidently he'd gotten these pictures from the family of the woman who'd had them taken. These pictures were never brought to the attention of the police at the time of the original investigation.”

Crowder introduced the pictures into evidence, solving what otherwise might have been a thorny problem for Nina, and one that had occupied several hours of research time for me, since the private investigator who'd taken the pictures was untraceable and we had no other way of proving that the pictures were what we said. However, as long as Nina didn't object, Crowder could introduce whatever evidence she wanted. These pictures had come to Teddy from Keith Locke's sister, and both sides had agreed that they'd be admitted.

“Were you able to identify the man with whom she'd been having the affair?”

“I was. He's a physician at UCSF.”

“Did you consider him a suspect?”

“Initially, yes, but the physical evidence ruled him out. The semen collected from the victim's body at the crime scene has been destroyed, but the results of the tests they ran on it are still available. Although these tests can't make a positive confirmation of the killer's identity, we can use the results to rule out suspects whose blood types don't match the blood type of the donor.”

“How were you able to determine that the semen in her body didn't belong to this man?”

“I went to his lawyer and asked if he would give a blood sample. He readily agreed. The semen collected from her body at the crime scene didn't match his blood type. He's O negative; the donor was type A positive. Simple as that.”

“Based on your experience, is there any way that a DNA sample would have turned up a different result?”

Nina objected that Crowder hadn't established Shanahan's expertise in DNA testing, but Liu overruled her. The point was obvious.

“No chance,” Shanahan said. “If the blood types don't match, then we're dealing with two different people. I don't need DNA to tell me that. Even so, I asked the doctor's attorney if I could interview him. He'd been in an intimate relationship with the victim at the time of her death, and I thought that he might have relevant information. Of course, twenty-one years had passed. As it turned out, however, his memory was quite clear.”

“What conclusions, if any, did you form based on the fact that the DNA didn't match?”

This was the weak point of Crowder's case, and she was not going to make the jurors wait for her answer to what ought to have been a thorny dilemma. Shanahan's answer was audacious and cunning: “I concluded that the victim must have had multiple boyfriends.”

“What was the focus of your investigation after speaking with the physician?”

“After that conversation, my focus was on the defendant, Lawrence Maxwell.”

“Why was that your focus at this point?”

“Because of information I received from my interview. The doctor told me that Caroline was deathly afraid of her husband, that she was convinced that sooner or later he would find out, and something terrible would happen. He also told me he was convinced she'd been unfaithful to her husband with other men.” Nina interrupted with a hearsay objection, an objection that I'd been itching for her to make ever since the previous question. Liu overruled her on the shaky ground that she'd attacked Shanahan's investigation and the state was entitled to rehabilitate it.

Shanahan went on. “He didn't take her seriously. She was a dramatic woman, and he thought it excited her to pretend that the danger was greater than it actually was. After speaking with him, I felt certain that the motive was jealousy.”

“What did you do next?”

I felt relieved as I realized that this was all they had, their only answer. Under the state's theory, it seemed equally probable that Caroline's other lover, and not Lawrence, had killed her, if such a man even existed. I hoped that this point was as obvious to the jurors as it was to me.

“I began tracking down and interviewing men who'd known Maxwell in prison. Twenty-one years is a long time to spend behind bars. In all that time, I figured he might have opened up to someone.”

“Whom did you speak with during this part of your investigation?”