“Yes,” Piper says, and then she pulls out the hotel receipt showing the charge for the room. “David gave me money to pay the bill in cash so there wouldn’t be a credit-card record. But the hotel still gave me a receipt when I checked out.”
Devlin studies the bill and asks Piper to state what it is for the record. Then he turns to the judge and says, “Your Honor, I don’t want to be indelicate here, but I think I’m entitled to some more background. I need it to weigh what the witness is now telling us. And, quite frankly, I think the court is entitled to that as well.”
“I agree,” says the judge. Then he looks at Piper and says, in a kindly voice, “In requesting the court to let you testify at this late date, defense counsel is asking quite a lot. Normally, an alibi witness is identified well in advance of trial, giving the prosecution the chance to investigate the veracity of the alibi. Here, unless I were willing to suspend trial for some period to allow the prosecution to check out what you’re saying—which is not something I want to do—the prosecution will not have had that chance. So I’m going to allow Mr. Walker an opportunity to question you, at length, about the circumstances surrounding your alleged meeting with the defendant on the day of the murder. Do you understand?”
Piper nods. “Yes.”
“Does defense counsel have any objection to this?” Judge Henry asks Susan, who says she does not. “Very well, Mr. Walker. The witness is yours.”
Devlin spends the next twenty minutes excavating the details of Piper’s affair with David Hanson. When it began and how. How often they met and where. How they arranged their meetings so their spouses wouldn’t find out about them. It’s an agonizing interchange. It feels as though Devlin is taking a long sword and slowly pushing it through my heart, inch by inch. From time to time, he glances back at me. I can tell he’s enjoying my torment. And then comes the final plunge of the blade.
“One more question, Mrs. McFarland. And here I cannot help but be indelicate. To corroborate that you were in fact engaging in relations, can you describe any sort of mark or scar on Mr. Hanson’s body that wouldn’t be visible unless he were disrobed?”
Piper swallows hard. Her shoulders slouch. She averts her eyes from Devlin, then closes them. “He has a mole. On his upper thigh, the left one.”
Fury fills me as pictures of my wife and David Hanson flash across the movie screen inside my mind. It takes every ounce of my strength not to attack David right there in chambers, batter his face into pulp. Instead, I close my own eyes, take deep breaths. After what seems like an hour, but which can’t have been more than a few seconds, the judge asks Susan if the client will acknowledge that this is the case. But Devlin has a better idea.
“Your Honor,” my adversary interjects, “the Commonwealth needs more.”
It takes a moment for Bill Henry to figure out what Devlin is asking, but when he does, he sighs and nods. He asks Devlin if he’s done with the witness, and if there’s any need for Piper to remain while the defendant disrobes.
Devlin glances at me, and I glare at him. “The prosecution has no more questions for the witness at this time. We have no objection to her leaving chambers during the examination.”
I stand as Piper leaves the chair. “With the court’s permission,” I say, “I’d like to be allowed to leave for this part as well.” Judge Henry grants me leave, and I accompany Piper out of chambers. I escort her past the secretarial well and out the door into the hallway. We walk quietly to the long bench by the windows at the end of the hall and sit. Piper leans into me. I wrap my arms around her and promise her, again, that this is all going to turn out okay.
After a few minutes, one of the judge’s law clerks walks into the hallway and summons me back to chambers. Judge Henry looks at me, concern and pity in his eyes. “The inspection corroborated the witness’s testimony,” he says. Then he turns to Devlin. “Does the Commonwealth still object to the defense’s presenting the witness?”
Devlin looks at the judge, then leans forward in his seat, places his elbows on the armrests, steeples his pointer fingers, and puts them to his lips. He closes his eyes for a long minute. Then he opens them again, leans back in his seat. “The Commonwealth is satisfied that the witness is telling the truth.” Then, as though he were thinking out loud, Devlin continues. “If the earliest the murder occurred was noon, as the pathologist testified, and if the defendant left his office at eleven fifty, it would be impossible for him to have traveled to Addison Street, even by cab, pushed the victim down the stairs, dragged her back to the stairs, cleaned off all the blood that would’ve gotten onto him, and made it to the hotel by noon.” Devlin pauses, sighs, and says the words that stun everyone present—except me. “We’re ready to drop the charges.”
“What?” Christina Wesley almost falls out of her chair.
“Excuse me?” the judge says.
Susan jerks her head back to where I’m sitting on the couch. Her eyes are filled with disbelief.
“Your Honor,” Devlin begins, his voice low and calm, “in all my years as a prosecutor, I have never once knowingly sent a man to prison whom I believed was not guilty. I’ve never even brought charges against someone where I wasn’t personally convinced of their guilt.”
“That’s not the standard for bringing a defendant to trial, Mr. Walker,” Judge Henry says. “If there’s sufficient evidence to support the charges, a prosecutor may properly bring those charges, regardless of his personal beliefs. That’s the standard.”
Devlin lifts his head. “Respectfully, Your Honor, I hold myself to a higher standard.”
I can’t help but smile. Devlin’s being clever. He knows this transcript will be made public, just as he knows he’s going to have to justify his heretical decision to drop the charges against David. And there is only one acceptable justification: actual innocence. Devlin has to take the position that he believes David Hanson is not the one who murdered Jennifer Yamura. He is doing so now, and is painting himself as a prosecutor who takes the moral high ground.
“Would you like some time to talk with your boss?” the judge asks Devlin.
“This is my call, Your Honor.”
There’s no way Devlin is going to call the DA. The district attorney would yank Devlin from the case, appoint Christina Wesley first chair, and tell her to press vigorously for a conviction.
“I don’t need to tell you that if you drop the charges, double jeopardy will attach, and there can be no retrial for homicide,” the judge says.
Devlin doesn’t answer, just stares at the judge. Beside him, Christina Wesley sits frozen in her chair.
“And what about the lesser charges?” Bill Henry asks. “Tampering with evidence, interfering with a crime scene, and so forth?”
Devlin considers this. “The Commonwealth will drop those as well.”