The Ex (19 page)

T
HE MARCH TOWARD
a criminal trial is slow but never steady—fast and frenetic at the beginning, followed by a long period that would feel almost normal if not for the pending charges, followed by the ramp-up toward trial.

Three weeks after we confirmed that someone had hired Sharon Lawson to pose as “Madeline,” the frantic stage was coming to a close. The July Fourth holiday had come and gone, and we had spent the weekend at the office, hoping to come up with some theory that might persuade or cajole or embarrass the district attorney into dismissing the case against Jack before we all hunkered down for what would be a long, slow fight.

The larger of the two conference rooms in the Ellison & Randall law firm was devoted completely to Jack’s defense. The entire table, the sideboard, and half of the chairs were blanketed by boxes, files, and documents. Two mobile whiteboards were covered with multiple colors of ink.

I could not hear myself over all of the competing voices.

“We have to pare this down. We need a clear narrative.” That was Don. Don was all about narrative.

“Seriously, Olivia. I’ve looked at this shit fifty times and have no idea what we’re missing.” Einer, sitting on the floor, surrounded by documents.

Jack—conferencing in via speakerphone—was saying, “I don’t know if I’m comfortable dragging the other victims into this.”

“Fuck Gothamist.” That was Charlotte, who was obsessed with online coverage of the case. “They’re accusing me of using the Room to spread pro-Jack propaganda. It’s not propaganda if it’s true.”

Einer held up a high five for Charlotte, which she returned. “You tell ’em, Martina Navratilova.” A month of antagonistic banter, and somehow Charlotte was fonder of Einer than she’d ever been of me.

“Quiet, I can’t think.” I was determined to send everyone home in the next hour. Charlotte, unaccustomed to being shushed, shot me a glare. I turned to her first. “Can you back off a little on the Room posts? The last thing Jack needs is a backlash from other media sites.”

She didn’t look happy, but she didn’t argue, either.

“Einer, I promise you, there is something in those boxes that’s worth finding.” I had been pushing Scott Temple to provide discovery earlier than was technically required. In response, he had shipped over seventeen large boxes of documents to our offices two days earlier. We had quickly figured out that six of them were duplicates of documents the police had seized from Jack’s home office, including all of his materials regarding the civil case against Malcolm Neeley. But the others went well beyond the obvious discovery I would typically expect. In addition to the usual witness statements, the medical examiner’s findings, and crime scene photographs, the prosecution had included hundreds of pages of records like phone logs, credit card and banking statements, and other documents with no clear connection to the case.

Chances are, Temple was fucking with me for nagging him for
early discovery. But my gut told me there was another side to the story.

If I had to guess, there was Brady material there—evidence that would help our case, which he was required to turn over—but he’d buried it among several boxes of paper to make me work for it. I told Einer to keep digging.

“Olivia, I swear to you, I’ve looked at everything. My eyes can’t make something magically appear if it’s not there.”

“Yes, actually, they can. Get some index cards and put the name of every document on a separate card. Rearrange them in different patterns—first by type of document. Then by the people the documents connect to—Jack, Neeley, the other victims. Look at everything in a new way. Now, on to narrative: Jack and Don, you seem to be arguing about the message I should be sending to the DA’s office.”

“Our story is too complicated.” Don gestured toward the ink-covered whiteboards. “Keep it simple: tee up Sharon Lawson and the Madeline e-mails to show that the same person hired Sharon for the missed moment and then sent Jack to the waterfront that morning as a sacrificial lamb. That’s all you need to do. It’s intriguing. It plants the seed that there’s another side to the story, and shifts the burden back to the state to figure out who’s behind that e-mail address. Everything else—it might be Max, it might be another co-plaintiff, it might be related to Malcolm’s hedge fund, maybe the other victims had enemies—it’s all speculative, and way too complicated.”

Through the speakerphone, Jack was saying, “Hello?” And “Can you hear me?” like a sheepish schoolboy at the back of the classroom, fighting to be heard over the gunner in the front row. “Plus I’m really not comfortable pointing the finger at these other people. I mean, they can’t
all
be guilty. Some of those co-plaintiffs have been totally on my side since all this happened. And then dragging the other two victims through the mud—”

“No one’s dragging anyone through the mud,” I said.

“Well, okay, but pointing out that one of them was homeless and one had a drug conviction—it’s just . . . so unseemly.”

I flashed back to all the times that Jack would lecture me for being so impatient when lines were long, service was slow, or any number of things didn’t happen on what he called “Olivia time.”

“Oh, for fuck’s sake,” I snapped. “You can’t afford to be the nice guy right now. What happened to telling me to do whatever I needed to keep you out of prison, Jack? Murder defendants don’t get to be
polite
.”

“It’s not polite. It’s basic human decency. Can we at least agree to leave out the other victims?”

“Jack—”

“Jesus H., Olivia. Did you forget that my wife—my daughter’s mother—is also a murder victim?”

“Okay, time out,” Don said. “I agree we can’t think about other people’s feelings right now. But, Olivia, we do need to think about how this is going to play with the DA, and eventually the jury. If you’re pointing the finger at everyone but Jack, it feels desperate. You told Charlotte we didn’t need a media backlash—well, you could trigger one if you’re perceived as trashing the victims. That’s what I meant about a clear narrative. Just stick with Madeline—or Helen, or what’s her name?”

Einer, Charlotte, and I all spoke in unison. “Sharon Lawson.”

“Stick with that,” Don said. “We have her affidavit. Someone hired Sharon specifically to look for Jack on his usual running route. Same e-mail address as whoever told him to go to the sports field the morning of the shooting. The prosecution needs to explain that or they can’t win. Reasonable doubt’s all we need.”

Don was right. The missed-moment and subsequent e-mails were complicated enough. Anything else was information overload.

I looked again at the rows of boxes filling the office.

Something was in there that Scott Temple was hiding. I needed to find out what it was before I told him about Sharon.

BY THE TIME I LEFT
work, it was after ten o’clock. I knew I should go home, but I was feeling antsy and wanted a drink. I hailed a cab and automatically gave the driver the address for Lissa’s.

He had driven two blocks when I said, “Actually, drop me at Grand and Baxter instead.” He sighed even though the route was the same.

“Where am I stopping?” the cabbie asked as we approached.

“That place with the red pillars on the right.”

Unless you’ve been a woman who walks into a bar late at night by herself, you have no idea how it feels. It shouldn’t feel like anything. This city is filled with single adults, busy adults, tourists and businesspeople traveling alone. No one cooks. People are out more often than they’re home. Men show up on their own at bars and restaurants, and no one gives them a second thought. I tell myself it’s the same for me. But I know it’s not, not to the people who see me scanning for a place to sit. Probably not to me, either.

Tonight, my eyes were scanning for more than a chair. I was certain that I’d find the face I was looking for. I don’t know why I bothered to feel disappointed when my hopes weren’t satisfied. It had been a shot in the dark. But now that I was here, I still wanted a drink. I spotted one empty seat at the bar, with a half glass of wine on the counter and a cloth napkin folded across the back of the stool. That was bar-speak for smoke break. Until the human chimney returned, I could stand here in the meantime to get the bartender’s attention.

I had ordered a Hendrick’s martini up with a twist and was listening to the rattle of shaken ice when I felt someone brush up next to me.

“You’re stealing chairs now?”

I caught a whiff of lingering cigarette smoke, and turned to see Scott Temple. My gut hadn’t been off after all.

“Just ordering an end-of-the-day libation.”

“Would that be a bad day or a good day?”

Funny how that works. Whether everything goes right or nothing goes your way, booze always seems like a good idea.

He pulled out the barstool and offered it to me. “After you.”

I accepted and took a generous sip of my martini. “I didn’t know you smoked.”

“I don’t, but every once in a while, with the drinks—old habits, I guess. The bartender lets me bum them off her. Now why do I have the feeling bumping into each other isn’t pure coincidence? You and I have had some pretty meaningful conversations here.”

“Sometimes a cigar is just a cigar, and sometimes lawyers need gin near the courthouse.”

“You’re fishing for information, aren’t you?”

“You’re acting like you have information you want me to catch.”

“Sure, why not? Today I spoke to one of your client’s fellow plaintiffs in the Penn Station suit. His name’s Jon Weilly.”

I did my best to act unconcerned. “You don’t think jurors have also said things in anger?” I asked. “You have to be desperate if that’s the best you’ve got. I was hoping you might tell me why you sent over seventeen boxes of discovery, months before trial.”

His eyes were already glassy but he took another sip of his wine. “I love it. A defense attorney bitching that I sent over
too much
evidence.”

“I’m not some rookie, Scott. If you flood me with irrelevant evidence, I know you’re hiding something. You may have technically complied with the discovery rules, but you can only get so cute before a judge calls you out on your shit.”

“I’m not sure what you want here, Olivia. I’ve told you from the very beginning that our case is tighter than you think, but you won’t believe me.”

“Is the slam-dunk evidence in those boxes? Because, if so, I don’t see it.”

“Your request was for
Brady
material—that’s the exculpatory stuff, remember?”

So I was right. Scott may not have turned over everything, but something that helped Jack was buried in the avalanche of paper spilled
across our conference room. “Give me a hint. A little help for both of us. I don’t rat you out to the judge, and you tell me what’s hiding in those boxes.”

“You know that story about the frog and the scorpion? The scorpion bites the frog even though it means they’ll both die. The frog says, ‘Why?’ and the scorpion says, ‘It’s in my nature.’ You’re a defense attorney. In my book, that makes you the scorpion.”

“Except you’re the scorpion for assuming you can’t trust me. You know I don’t vouch for clients unless I mean it. And I know you want to get convictions the right way. This hide-the-ball stuff might be par for the course for your office, but not you. You’re too good for this.”

He pulled out his wallet, dropped a couple of twenties on the counter, and drained the rest of his wine.

“It’s always a tough call, Olivia.” His hand squeezed my forearm. “I’ll talk to you later.”

I left fifteen minutes after Temple, my martini softening the edges of my anxiety. I pulled up Einer’s number on my cell once I hit the sidewalk, and hit Enter.

“Hey.”

“You still going through the discovery?” I asked.

“I’ll say yes if I’m supposed to, but do you know what time it is?”

I looked at my watch. Five minutes past midnight.

“Some of the documents are phone records, right?”

“Yeah, a bunch. The LUDs from both of Neeley’s homes and his cell. And Jack’s cell, of course. Plus call records for the Sentry Group. I told you: they flooded us with paper.”

“Whatever they’re hiding, it’s got something to do with the phone records.”

“How do you know that?”

“I just do.”

It’s always a tough call, Olivia.
That was my hint.

I JERKED AT THE SOUND
of my own cell phone on the nightstand the next morning.

Barely
morning: 10:45. It was Einer.

“Hey. I was just walking out the door.”

“I don’t know how you had magical information at midnight, but your inner soothsayer was right. All those boxes of paper, and somehow you nailed it. It was in the phone records. The incoming calls to the Sentry Group, to be exact.”

“Please don’t tell me that Jack called him.” When I first learned that the police had pulled incoming calls to the Sentry Group, I had assumed they were looking for evidence that Jack—true to their stalking theme—had phoned Malcolm Neeley. But Jack had assured me that there would be no such evidence. And I was sure that whatever the prosecution was hiding in those boxes would help us, not hurt.

“No, thank God,” Einer said. “I can’t believe I missed it, but the list of calls is
long
. The Sentry Group records are only for the main switchboard, so I was paying more attention to Neeley’s home and cell phones. And the records only have the phone numbers on the other side of the line, not the name of the caller or anything.”

“I got it. Just tell me.”

“You ready? In this very long list of incoming calls to the Sentry Group during the week before the shooting, three of them came from the same number.” He rattled off ten digits. “You wanna take a guess? Because, trust me, there’s no way you’d ever guess—”

“Einer!”

“It’s Tracy Frankel. That number belongs to the cell phone found in Tracy Frankel’s purse after she was killed at the football field with Malcolm Neeley. She was calling the Sentry Group. Now does that blow your mind, or what?”

T
WO DAYS LATER
, I showed up at Judge Amador’s courtroom during his afternoon motions docket.

“Well, good afternoon, Ms. Randall. I didn’t see you on the list. To what do I owe the pleasure?”

“Something has come up in the Jack Harris case, Your Honor. You oversaw his bail hearing? It’s a touchy discovery issue that I thought you might be able to oversee informally if you have the time.”

Amador had his clerk call Scott Temple to see if he was available. Five minutes later, Temple walked into the courtroom, a legal pad in hand. “Very mysterious,” he whispered as he joined me past the bar.

“Predictable is boring,” I said. I felt bad for what I was about to do to him, but it was all part of the job.

“YOUR HONOR, I’M HERE TO
request a subpoena for the phone records of Tracy Frankel.”

The judge squinted. “Remind me again of who that is?”

“She was one of the other victims—the youngest one, the female.”

“Oh, of course. I should have realized. I’m sorry. What is this all about?”

Temple gave me a worried look.

“We believe the phone records are Brady material, but have serious doubts about the prosecution’s willingness to disclose it voluntarily. Unfortunately, after a week spent reviewing several boxes of unlabeled and unorganized documents produced by the People, we finally realized that they had intentionally buried important and exculpatory evidence that should have led them on their own to obtain the information we’re requesting.”

“What kind of evidence are we talking about?”

Temple opened his mouth, but I jumped in before he could answer. “The prosecution hid concrete evidence linking two of the shooting victims, namely, direct proof that Tracy Frankel phoned Malcolm Neeley’s hedge fund, the Sentry Group, three times in the week before the murder. Just as I said at the bail hearing, there is another side to the prosecution’s story. Their case rests entirely upon my client’s supposed animosity toward a single victim—Malcolm Neeley—with the other two victims caught in the wrong place at the wrong time. That’s why the prosecution tried to bury any connection between Tracy Frankel and Malcolm Neeley.”

“How exactly did they bury it?” the judge asked.

Temple finally found a chance to jump into the conversation. “Your Honor, this is a completely unnecessary conference. If Ms. Randall had simply called me—”

“Given her allegation, perhaps she doesn’t agree, which is why I asked my question.”

“They produced nearly twenty boxes of unsorted documents,” I said. “A few of the pages listed incoming calls to the Sentry Group. We had to read every line of every page of every document multiple times before we finally realized that one of the phone numbers on the list belonged to Tracy Frankel’s cell phone.”

Judge Amador tapped his eyeglasses on the bench while he processed the information. “Mr. Temple, a yes or no question: did you know this?”

“To our knowledge, there are no direct communications between any of the victims—”

“Yes or no: did you know that Tracy Frankel’s phone was used to call the Sentry Group three times in the week before the shooting?”

“Yes, but—”

“Not another word. I’ve seen this from your office before, Mr. Temple. You flood the other side with a bunch of garbage hoping they can’t separate the wheat from the chaff. The defense made it quite clear at the bail hearing that other people may have had a motive to kill either Mr. Neeley or perhaps one of the other victims. A link between two of the victims—two people who, until now, appeared to share no connection whatsoever—could clearly be relevant to the defense. Do I seriously need to spell that out for you?”

“That’s not necessary, Your Honor.”

“So what do you have to say for yourself, Mr. Temple? How is the way you’ve handled the disclosure of this information consistent with a prosecutor’s ethical obligations?”

“If I may, Your Honor—”

“Of course you
may
. I just asked you to speak. I really want to know how you can justify this.”

“I understand that the defense would like to portray this as some kind of smoking gun—”

“Bad analogy, Mr. Temple.”

Scott took a deep breath and tried again. “I believe Ms. Randall used the words ‘important’ and ‘exculpatory,’ but I would not agree with either description. This was a long list of incoming calls, not to Mr. Neeley’s direct line, but to the general company switchboard. More than thirty employees work in that firm. Tracy Frankel could have been calling any one of them.”

“Does Ms. Frankel have an
account
with Sentry Group? I did not get the impression that she was a big mover and shaker in the finance world.”

“No, Your Honor. But Ms. Frankel had a prior conviction for drugs, and there are indications that she struggled, let’s say, financially. It is no secret that people who work in finance sometimes have interactions that involve drugs and perhaps other activities, such as prostitution.”

“So you’re saying that your victim was either selling drugs or sex to someone at the Sentry Group?”

“No, I didn’t say that.”

“Right, because you don’t know. Am I correct?”

“Yes, that’s correct.”

“And that’s exactly why you were hoping Ms. Randall and Mr. Ellison would not put two and two together and force you to deal with this inconvenient piece of evidence. I get it. But I don’t like it, and if I had to guess, Mr. Temple, you wouldn’t have done things this way if it were totally up to you.”

“It’s
not
how I dealt with it, Judge. I had a private conversation with Ms. Randall just two days ago. I basically told her to look at the phone records.”

“You
basically told her
? What does that mean? I must have missed that phrase in law school.”

Temple turned to me to save him, but I looked away. Just as I anticipated, he was trapped. To defend himself by saying he gave me a tipsy hint at a bar would be to admit that he’d been intentionally elusive in the first place.

“We could have been better about organizing the discovery,” he finally said. “But I think it should be noted that we produced disclosure far earlier than required. This case was arraigned less than a month ago, and no trial date has been set.”

“Mr. Temple, tell your bosses I’m not impressed. Now, Ms. Randall: what exactly are you asking for?”

I was ready to go. “A subpoena for Tracy Frankel’s cell phone records. Our hope is to turn up witnesses who may know more about a connection between Ms. Frankel and Mr. Neeley, perhaps a common enemy. Or, possibly, a link between Ms. Frankel and someone at the Sentry Group who may have had a motive to harm Mr. Neeley. I don’t want to speak prematurely, but one employee in particular stands to gain a significant financial benefit and apparently even made threats against Mr. Neeley.”

Judge Amador was waving a hand, telling me not to get ahead of myself. I didn’t tell him that my comments were intended for an entirely different audience.

Temple glared at me while the judge signed the subpoena I had prepared. He barely waited for Amador to step from the bench before turning to leave. “Just like I said, Olivia, it’s in your nature. You’re a goddamn scorpion.”

When I walked out of the courtroom, I saw Jan Myers from
Eyewitness News
sitting on a bench just outside the door, tucking a small recorder into her purse.

She smiled at me as I passed.

JACK DIDN’T BOTHER WITH A
greeting when he opened his apartment door.

“We talked about this, Olivia. Malcolm Neeley was a horrible person, but I don’t want to vilify the other shooting victims.”

Jan Myers had worked quickly, already reporting the shocking news that one of the other waterfront victims had been calling Neeley’s hedge fund in the days prior to the shooting. She was a good journalist. She’d find out about the terms of Neeley’s will and Max’s Princeton disciplinary hearing soon enough. Walking the edge of the gag order, I had told Jan that an after-lunch trip to the fifth floor of the courthouse might be worth her time. She’d owe me next time.

I set my briefcase down and followed Jack into the living room. I explained that we started looking into Tracy only after her phone number appeared in the Sentry Group phone records.

“Jack, remember telling me that in is in, out is out, and you just want to be out? I promised to do everything possible to keep you out. I can’t ignore this kind of evidence.” I was not about to check with him every single time I followed up on a lead.

“That girl is dead, Olivia. Her family is mourning her. And now there are pundits on television speculating about all kinds of scenarios, most of them insinuating that she somehow brought this on herself.” Jack was pacing, and his eyes were darting around the room. I was wishing that the police had cut off his cable in addition to his Internet connection.

“You’ve been telling me ever since you were arrested that something truly bizarre was going on. These phone calls back that up.”

He pressed his face into his palms. “I don’t know how you do this for a living. It’s like the truth doesn’t even matter anymore.”

“Do you want to be in, or do you want to be out? Because if you want to be out, you should be thanking me for the crap I pulled for you today at the courthouse.”

I JOKE THAT I ONLY
eat at five restaurants, but the real number is two. Lissa’s, because it’s home, like stopping by the school dining hall. And Maialino because the food is delicious, I can usually score a seat at the bar, and it’s only two blocks from my apartment.

At Lissa’s, I was never alone; I had Melissa, and usually Don, too. And at Maialino, I was alone. And when I was alone, I could sit and think about things like how I’d treated Scott Temple and whether it made me a bad person or a savior.

After an unmistakable hint that some overly perfumed woman move her purse, I assumed an unoccupied buffer seat between two
couples and ordered a dry martini. The bartender’s name was Travis. He told me once he was from Kansas. He moved here for some kind of interest in art, I think. As usual, he stopped by every ten minutes or so for some small talk so my iPhone wasn’t my only dinner company.

I had just finished the bucatini and was ordering a replacement for my Barolo when I felt a hand on my back. It was Ryan. Here’s another thing about eating at only two restaurants: it makes you easier to find than the average person. Ryan never dropped by Lissa’s. If he wanted to bump into me under the right circumstances, this was the place.

Ryan, as always, was beautiful. There really was no other word for it. When the gods were handing out genes, they gave him a perfect bundle of smart and sweet and cunning, without any of the pretty-boy smarm. He could take home anyone, probably even the cared-for, coupled-up women next to me. But whenever he looked at me, I felt wanted.

“Hey you.” His hand remained on my back. “I get it. No more texting you in random intervals. But please don’t treat me like I don’t matter.”

I finished my last sip of wine. His wife must be gone again.

“Do you want me to go?” he asked. “I thought you might want to celebrate. I saw your story on the news. You put that prosecutor through the wringer.”

As Travis refilled my glass, I ordered one for Ryan. I didn’t want to be alone.

TWO DAYS LATER, DON, EINER,
and I were at Lissa’s. We were desperate for a change of scenery, so Melissa had allowed us to take over her biggest table at the back of the restaurant for a long working lunch.

The discovery that Tracy Frankel had been calling the Sentry Group in the days before the shooting had reinvigorated our efforts. We were even more certain that the police had only skimmed the sur
face of what was really going on. With a little more evidence on our side, we might actually be able to get Jack’s case dismissed.

Einer took an enormous bite from his hamburger. “You guys are the experts, but on TV, this is where Viola Davis would be all,
I found a hooker who was hired to set my client up.
Drop the mic. Season cliffhanger.”

Don and I had already talked about the option of going to Scott Temple with the information we had gotten from Sharon Lawson, but agreed that we weren’t ready yet. Without more evidence, Scott would simply argue that Jack had been the one to hire Sharon to pose as “Madeline,” hoping that the video proof of her existence would work in his defense.

But now that we’d connected Tracy Frankel to the Sentry Group, we might have a shot at figuring out who hired Sharon and why. Whoever framed Jack must have wanted both Tracy and Malcolm dead, and then shot the third victim because he was a witness or to make the killing seem more random than it was.

Ever the teacher, Don took the time to explain the logic to Einer. “The DA’s not going to dismiss the case just on our say-so that
someone
framed Jack, with fifteen different theories as to why. So here’s the big question: How do we use these phone calls to put some bones on the third-party theory? Einer, you’re sure we didn’t miss any other calls in Tracy’s records that we can link to Malcolm Neeley?”

Within a few hours of Judge Amador’s signing the subpoena, AT&T sent us a list of three months of Tracy Frankel’s incoming and outgoing calls. The three calls to Sentry Group the week before the shooting were the only ones to Neeley’s hedge fund, but Einer had been working on identifying the other people Tracy had spoken to.

“No other calls to or from Neeley’s cell phone or either home number. She actually didn’t have that many contacts, in or out.”

“But she had more than zero,” Don said. “Do we know who they were? Maybe one of her friends could explain the connection.”

Einer had the documents on the empty seat next to him. “I have almost every number identified. Her parents. Her older sister, Laura. A guy named Double Simpson—that’s his actual legal name, believe it or not. A source at the department tells me Double’s a low-level drug dealer by all indications.”

Don leaned forward. “Maybe the dealer had some kind of beef with Tracy and wound up shooting two bystanders in the process?”