“You know, Mick, you’re really not doing all that poorly. This may be a case to take to the jury, after all.”
I take a deep breath. I haven’t told Ginsberg about the tape. He doesn’t know, as I do from the video, that three men met with Jennifer Yamura in her house the day she was killed. That the second man pushed her down the stairs. And that it must have been the third man, David Hanson, who finished her off. And Ginsberg doesn’t know why I must ensure that David gets away with it. Or why, to make that happen, I need to see to it that this case never goes to verdict.
“I can’t have this case get anywhere near the jury,” I tell him. “And David and Marcie have to be plenty scared when the defense rests its case. That’s why you’re here.”
“I remember.”
Ginsberg leaves me, and I go over to Piper.
“I forgot how good you are,” she says. “And how interesting trials can be.”
“Interesting is a good word for it.”
“Ancient Chinese curse, I know,” Piper says, referring to the famous line: May you live in interesting times. “Seriously, though, I felt like I was on a roller coaster in there. The morning was bad for David, but in the afternoon things seemed to turn around. What did Mr. Ginsberg think?”
“He said that we can’t let this case get anywhere near a jury.” Piper’s face falls dramatically. “Hey, don’t worry. The prosecution’s case is full of holes, and I’m going to rip them wide open for the jury. Then comes our turn.”
“Will David have to testify?”
I take a deep breath. “I’m hoping not. Devlin would crush him. Unless David chooses to disclose his alibi for where he was at the time of the murder.”
“How long does he have to decide to do that?”
“We were supposed to notify the court and prosecution of a potential alibi defense a long time ago. Still, if David came forward even now with a credible alibi, I don’t think Bill Henry would exclude it.” I pause. Piper seems not to realize that I have stopped talking. “Hey? You okay?”
“Yeah.” She checks her watch. “Oops. I’ve got to get to my parents’ house and pick up Gabby.”
I walk Piper to the elevators and press the “Down” button for her. “I’m not going to be too late tonight,” I say. “I have to meet Marcie for a few minutes, discuss strategy, then tighten up my cross-examinations on some of the prosecution witnesses. Shouldn’t take more than a few hours. I’ll be home by nine.” Piper’s elevator arrives and she starts to enter. Then she turns to face me, holding open the doors.
“Is Marcie involved in the strategy?” Piper asks.
I nod. “Sometimes I think she’s more involved in it that I am.”
Piper stares at me for a moment, then smiles wanly and lets the elevator doors close. I take the next elevator to the twelfth floor and the judge’s chambers. The judge, Devlin Walker, Christina Wesley, and the judge’s law clerk are all waiting for me.
“Glad you could join us, Mr. McFarland,” the judge says. There’s a sharpness to his voice, and I decide not to make light of my tardiness. “All right,” he says, “now that we’re all here, let me get to it. This whole money thing is bothering me. I think I may have made a mistake in letting it in.” This causes Devlin to shift in his seat. Christina Wesley’s jaw drops. The judge goes on, addressing himself to me. “That’s why I gave you broad latitude in asking about all that charity stuff. Do you have a fair basis for that line of questioning? Some evidence to support it? It’s one thing to imply that your client used the money for a worthy goal in a motion hearing. It’s another entirely to use your questions to send a false message to the jury during trial.”
I look the judge in the eye and answer, “I do have a fair basis for my questions. Whether I decide to have my client take the stand and disclose that information is up in the air.”
Devlin is halfway out of his seat by now. “Your Honor, I would strongly object to the court’s reversing itself on this issue, particularly now that the Commonwealth has presented evidence on it. The jury would think we tried to get away with something and Your Honor shut us down.”
“Relax, counselor,” the judge says. “I haven’t made up my mind what I’m going to do yet. But from this point on, I don’t want any more testimony on it. I want you to focus on the elements of the charges.”
“Edwin Hanson was our last witness on the flight issue,” Devlin says.
The judge nods, then turns back to me. “I’m going to let in the evidence of the neighborhood robberies. This is a murder case, and it seems to me that other break-ins close in time and place to the murder are probative of the issue of whether there may have been someone other than the defendant with the motive and opportunity to kill the decedent.”
Devlin protests. “Your Honor, there are burglaries and petty crimes in every neighborhood in the city. Are we going to conduct mini trials on every neighborhood transgression in all of our murder cases? It would be unworkable!”
Then it’s Christina Wesley’s turn to vent. “This is ridiculous! We don’t even know who committed those burglaries. How can we investigate a crime if we don’t know who the criminal is?”
The judge, Devlin Walker, and I all look at the young prosecutor. After a moment, I offer, “Well, gee, Ms. Wesley, I thought that part of the investigation process is finding out the identity of the criminal.”
Christina’s face turns crimson. I can’t tell whether she’s more embarrassed at herself or livid with me.
“Is there any talk of a plea here?” Bill Henry asks, out of the blue. “I know your client isn’t going to cop to first degree,” he continues, looking at me. “But what about voluntary manslaughter? Or even involuntary manslaughter?”
Devlin says he has little interest in a plea but will consider it if approached by the defense.
The judge shrugs and tells me to talk to my client, see if he’ll agree to plead to a lesser charge.
“I’ll run it by him, Your Honor,” I say, without enthusiasm.
The judge dismisses us until tomorrow, and I leave chambers ahead of Devlin and Christina. I’m walking toward the elevators when Walker comes up behind me.
“A minute, Mick,” he says.
I turn and wait.
“Early on,” Devlin says, “I offered to let your client save himself from life imprisonment by pleading to voluntary manslaughter. I’m making that offer again, for the last time, but only if—”
I put up a hand to stop him. “I know. I know it chapter and verse. How about you tell me something.”
Devlin stares at me, waiting.
“What’s the big secret?” I ask.
He looks at me, confused.