CHAPTER 69
A week after the break-in at Sebastian Finkle’s condo, Sean sat in a conference room in the U.S. Attorney’s Office. On the battle-worn table—marred by scratches and stains from years of trial preparation—was a stack of legal pads and a pencil holder filled with sharp no. 2s. The walls, tired and off-white, were bare except for the Justice Department seal, an eagle clutching a quiver of arrows in its claws. Under the bird, a motto written in Latin. Abby could read Latin, but not Sean. He couldn’t escape the constant reminders of her that were everywhere.
A black woman, short with thin eyebrows, strode into the room. Behind her, an older man, hound-dog face and thinning hair, and two wide-eyed women in their twenties.
“Sean, so glad you could make it,” said Patti Fallon, the lead prosecutor.
After introductions to her team and small talk, Fallon said, “The hearing tomorrow should be pretty short.” She was sitting next to Sean, her hands folded on the table. “You probably already know all this, but just so everyone is on the same page, I thought I’d walk you through what will happen.”
Sean nodded.
“Malik Montgomery has moved to suppress evidence concerning your visit to his home that night. He’s trying to get the court to exclude from the trial that your daughter’s phone was hidden in his house. Most important for our purposes, he says that since that search was illegal, everything else that followed should be excluded from evidence.”
“Fruit of the poisonous tree?” Sean asked. That was first-year law student territory.
“That’s right. So, he’s not just trying to exclude Abby’s phone, but everything he said to you and Deputy Director Pacini—and the surveillance video at the Supreme Court. He argues all of it should be thrown out.”
“You can’t be serious?” Sean said. “I searched the house, not Frank, and I’m not with the government so what’s his basis for exclusion? The Fourth Amendment doesn’t apply to searches by private parties. Also, as for Malik’s statements, Frank Mirandized him before he talked to us, so those can’t possibly be thrown out, can they?”
Fallon gave a satisfied smile. “I’m glad to hear you say all that. Those will be my key arguments. The problem is that it was an unusual situation. Frank was there that night as a friend, but he’s still an FBI official. The line between friend and government agent also got a little blurry as the night went on. Blake Hellstrom will argue that Frank’s presence alone rendered the whole thing a government search. So the critical question could become consent: whether Malik Montgomery consented to the search. If he consented, it doesn’t matter if it was a government or private search.”
Sean said, “This shouldn’t be a problem. It’s hazy, but I remember Malik saying he wanted to help and he let us in. He consented.”
Fallon smiled again and scribbled something on a legal pad. She explained that the hearing shouldn’t last more than an hour or two. She would call Frank Pacini and Sean as her only witnesses. She wasn’t sure who Blake Hellstrom would call as witnesses—the judge didn’t require each side to exchange witness lists for hearings on pretrial motions.
“He wouldn’t call Malik as a witness, would he?” Sean asked.
“He might.”
“Isn’t that risky? Aren’t criminal lawyers usually loath to put their clients on the stand?”
“Suppression hearings are different, so Hellstrom may take the risk. The law in D.C. is good for him on that. Nothing Malik says at a suppression hearing can be used against him at the trial. Also, Judge Chin will keep me on a short leash on cross. She won’t let me get anywhere near the merits of the case or allow me to try to pin him down on the facts.”
Sean took a deep breath. “Look, the evidence should stay in, but I need to ask you something.”
Fallon lifted her gaze from the legal pad.
“Are you sure Malik Montgomery killed my daughter?” Sean asked. “I mean really sure?”
Fallon’s eyes flashed. She put down her pen. “I wouldn’t be prosecuting him if I didn’t believe he did it, Sean. I don’t understand the—”
“Have you looked at other suspects?”
“I believe the agents looked at all angles, yes.”
“You believe.”
At this, Fallon exhaled heavily. Her colleague picked imaginary lint from his shirt. A moment passed and Fallon said, “Malik Montgomery was the last person seen with your daughter alive. She broke up with him and witnesses saw them arguing right before she was murdered. Her telephone was found in his home. He lied about being at the court that night. And he had access to erase the court’s surveillance recordings.”