Murder One (30 page)

“We can’t allow that, Judge. And we have a court order signed by a federal district court judge of the District of Columbia as well as a letter from the United States attorney. It would jeopardize an ongoing investigation, not to mention endanger the lives of well-placed informants.”

Cerrabone countered that he either wanted the court to compel Cruz or Willins to testify, or he wanted an order that no one be
allowed to make any reference to their footprints or to Cruz’s fingerprint.

“It’s irrelevant, Your Honor. We now know it has nothing to do with who shot Mr. Vasiliev. It will greatly prejudice the state if it is introduced without explanation, and it will confuse the jury.”

Sloane, just as adamant that the evidence be allowed, interrupted the argument with his own. “The state was prepared to go forward when they had no idea who’d made the footprints or how Mr. Cruz’s fingerprint ended up on the slider,” he said. “For them to now argue prejudice because they can’t explain something for which they had no explanation in the first place is ridiculous.”

But Sloane knew he was treading water. Now that they could identify the two people responsible for the shoe prints, and they were not the assassins he had hoped for, there was no way Underwood would allow him to imply that to be the case to the jury. Having deduced this, he had already mentally moved to plan B, which was to try to at least be allowed to argue that federal officers were keeping Vasiliev under twenty-four-hour surveillance.

“What inferences the jury draws from that is fair game,” he said. What he was hoping, of course, was the jury would infer other potential reasons Vasiliev had been shot, such as someone within Vasiliev’s organization having learned of the surveillance and had decided it was time for Vasiliev to go. It was thin, Sloane knew, and Underwood didn’t look to be buying it, though at the moment the judge didn’t appear to be buying anything. He brooded behind his desk, glasses off, elbows propped on the calendar pad, hands clasped beneath his nostrils. His eyes shot daggers at everyone in the room.

The debate continued until Underwood put an end to it a second time and called for his court reporter to reenter. The red-haired man took his seat, hands on the stenographer’s machine.

“Here’s what we’re going to do,” Underwood said. “First of all, the fact that a federal district court judge may or may not be guilty of serious misconduct is not relevant to the case I have before me . . . which we were supposed to begin this morning.” He did not try to conceal his irritation. “There will be no mention of Judge Kozlowski or what he did or did not do in this proceeding. That will be a matter for the Justice Department, I presume, at some later date.
As for the presence of the other two sets of footprints, Mr. Cruz will testify.”

One of the suits began to object, but Underwood cut him off with a glare and a raised hand. “He will testify in chambers and outside the presence of the jury. His testimony will be solicited by one of you gentlemen, and Mr. Cerrabone and Mr. Sloane, you will be free to ask whatever questions you desire. The testimony will thereafter be sealed and not made a part of the official court record, but it will be available to any appellate tribunal should that become necessary to substantiate my ruling, which is as follows: there is to be no mention of these second and third sets of shoe prints. That being the case, I don’t see how I can allow introduction of the presence of Mr. Cruz’s fingerprint on the sliding-glass door. Based upon what I have heard this morning, and the testimony I anticipate to follow, neither the footprints not the fingerprint relate to the issue that is germane to this case—namely the guilt or innocence of Ms. Reid. Were I to allow the introduction of this evidence, the jury would certainly expect the state to explain it, and would perceive the state’s inability to do so as a tacit admission of its relevance and substance. Accordingly, I find that the prejudicial impact of the evidence and the further potential that it might reasonably be expected to cause juror confusion outweighs its probative value. Mr. Cerrabone, Mr. Sloane, you are to advise your witnesses that there is to be no mention of that evidence. And it is to be stricken from any documents to be admitted and shown to the jury.”

Underwood turned to Sloane. “Mr. Sloane, I am not unmindful that you must feel as if you just had the rug pulled out from beneath you. You have lost a significant piece of potentially exculpating evidence. At the same time, we now know it is not exculpating evidence, and to argue that it is, knowing that it is not, would violate your duty as an officer of the court not to mislead this tribunal. While this may require that you reshape your arguments, it does not prevent you from representing your client to the fullest extent of the law. I am also not unmindful that your client declined to waive her right to a speedy trial, and therefore, we are here in part because of that declination. Had she done so, this evidence might well have come to light before we impaneled a jury. But we are where we are, and my intent is to move forward. You would be well within your
right to seek a continuance, if for no other reason than to preserve your client’s rights on appeal.”

In judge-speak, Underwood was advising Sloane that he could bring the motion to continue the trial, but the judge was not about to grant it. Still, Sloane would file the motion to preserve the record. Mindful of the judge’s attitude toward attorneys whom he perceived to be unprepared, however, Sloane took a different tack in chambers.

“Your Honor, this is an unfortunate development, but it does not change the fact that my client is innocent of the charges being brought by the state. We have maintained and continue to maintain that the jury will find not only a reasonable doubt but a significant one. That being said, I do wish to confer with my client before advising the court of my intentions.”

Sloane had put up the brave front, but inside, he knew he had suffered a tremendous blow. On the eve of his biggest trial, with the most to lose, he had lost his best chance to create a reasonable doubt.

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ASHINGTON

That afternoon, Sloane assembled the troops in the war room to discuss the outcome of the morning hearing and testimony. Neither Reid nor Pendergrass had been allowed into the hearing, the suits from the Justice Department wanting to limit the number of people privy to the information. Jenkins and Alex joined them at the table. Carolyn stood near the door, a spot she favored, arms crossed like a sentry.

Sloane did his best to keep from acting like the ship was sinking. It was taking on water, for certain; he couldn’t hide that fact, but the job now was not to panic and jump overboard. He had no alternative explanation for who else had both the motivation and opportunity to kill Vasiliev, or who could have had access to Reid’s home, left size-seven prints on the lawn, and fit the description of the person Joshua Blume claimed to have seen. It left him little choice but to go
back to playing defense, attacking the state’s witnesses one by one and trying to create reasonable doubt at every opportunity on cross-examination. That wasn’t his first choice, but it was what it was.

“I agree with David,” Reid said, remaining philosophical. “I see little value in seeking a continuance. We go forward.”

“We’re going to have to shift focus.” Pendergrass, clearly the most forlorn, flipped through a stack of pleadings on the table. “I mean, many of our arguments are premised on the other sets of footprints and the fingerprint—our cross-examinations . . . experts . . . I don’t know what we have left to argue.”

“I take it neither Cruz nor Willins actually saw the killer?” Jenkins asked.

It had been the first question Sloane had asked. “No. Willins said he heard something like a splash, but with the storm, he couldn’t be certain.”

“Which fits the state’s theory that the killer swam to and from the property,” Pendergrass said.

“Doesn’t matter. What Willins heard isn’t coming in,” Sloane said. “How much progress have we made on the documents?”

Pendergrass put down the pleadings, changing focus. “Not much. I went through another couple hundred this morning, but with all of this, I haven’t made a dent. I guess the good news is that I have the rest of the day and all night to continue.”

Sloane shook his head. “I need you to go through our motions and briefs and determine what we can salvage.”

“I’ll continue,” Barclay said. “I can go through them.”

“All right, then. Let’s try to put this time to good use.” That was as much of a pep talk as Sloane had in him. He went into his office, shutting the door. A few seconds after he did, it opened. He didn’t need to turn to know who had entered.

“You okay?” she asked.

He forced a smile. “Shouldn’t I be asking you that question?”

She shrugged. “What’s done is done.”

Sloane knew the stoicism was for his benefit. He also knew Barclay understood, perhaps better than anyone, the seriousness of the blow they had suffered.

Alex had the divorce file open on her desk, paging through it, when Jenkins entered.

“What do you know?” he asked.

“I know that I’m tired and my husband is an insensitive boob.”

“Yes, but we both already knew that.” He smiled. “Sorry. How are you holding up?”

“Too late.” She handed him a slip of paper. “You have a meeting at three-thirty.”

“Did you speak to Rowe?”

“They work in the same building. Same floor. He said he’d be there.”

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Rowe met Jenkins in the lobby of the Justice Center, and they rode the elevator to the seventh floor.

“Tell me again why I’m doing this?” Rowe asked.

“You’re humoring me.”

“I’m a bit out of humor after last night. I’m tired.”

“Have you been talking to my wife?” That got a smile. “You see, you do have some humor left.”

On the seventh floor, they entered an interior office where a dark-haired man sat talking on the phone. “I got to go. They’re here,” he said.

Rowe made the introductions. “This is Bernie Hamilton. He runs our cold-cases unit. This is Charles Jenkins. He works for Sloane.”

Hamilton grinned. “Knock knock.”

Jenkins looked at Rowe.

“We’re in a bit of a hurry, Bernie, anything?”

Hamilton flipped open a file. “Zach Bergman. Killed January twelfth, 2001.”

“How did he die?” Rowe asked.

“Shot in the head,” Hamilton said.

Rowe glanced at Jenkins, then back to Hamilton. “Do we know the caliber bullet?”

“A thirty-eight.”

“Suicide ruled out?”

“Given that they never found the gun, and the location of the bullet was the back of his head, yeah, suicide was ruled out.”

“Any suspects?”

“One, but nothing ever came of it. This case is as cold as the queen of England in bed.”

Rowe turned to Jenkins. “Okay, Mr. Jenkins, you’ve piqued my curiosity. So tell me who this guy is—or was.”

“He was a private investigator on a very acrimonious divorce.”

“And do I know either of the unhappy couple?”

“Both. He worked for Barclay Reid.”

Rowe turned his attention back to Hamilton. “Who was the suspect?”

“Some guy named Oberman. A doctor.”

TWENTY - TWO

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HURSDAY,
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ECEMBER
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T
he media returned with a vengeance, having assembled the previous morning only to be turned away. Rumors had begun to circulate, as they do when something unusual is left unexplained. Sloane had heard everything from he and Cerrabone were discussing a plea deal, to Barclay was pregnant.

So it was no surprise that an even bigger crowd assembled on the sidewalk outside the front entrance to the Administration Building on Fourth Avenue. Sloane had known that Yamaguchi’s trick, like any trick, would work only so many times before the media figured it out, and they had. They didn’t recognize the car, but as soon as Jenkins eased to the curb, they figured it out quickly enough and converged.

“You okay?” Sloane asked Barclay.

She nodded, wearing her game face, and Sloane pushed open the door.

The cameras clicked and flashed from the moment they exited. Sloane and Pendergrass—who looked a bit shell-shocked—flanked Reid like two bodyguards as they worked through the group to the front entrance, ignoring the shouted questions.

Two sheriffs designated by Court Operations waited at the glass doors to assist them in entering the building, being processed, and running the media gauntlet that filled the underground tunnel leading to the courthouse. Men with handheld cameras perched on their shoulders and reporters with notepads followed them in lockstep. The swarm increased on the eighth floor and followed until they
stepped through the double doors into the sanctity of the courtroom. Men and women sat shoulder to shoulder while two King County sheriffs directed those still seeking admittance to the room next door. To accommodate the media and public interest, Court Operations had opened the courtroom immediately adjacent to 854E and set up a television to receive a live feed of the proceedings.

Seated at the counsel table, Sloane did not feel the sense of comfort that usually came with the familiar surroundings. As the number of cases he tried mounted, he had come to find the structure of a trial relaxing. He developed a rhythm, and he knew for that day he had just one case to concentrate on, one witness at a time. But this morning he felt like a man who had asked a woman to marry him, and now, standing at the altar, the guests assembled behind them and the minister about to appear at any minute, he was having serious second thoughts.

Perhaps sensing his unease, Barclay leaned to her left to shorten the distance. “I like the watch, counselor.”