“What do you think?” Clarridge looked across the table to Tracy. “Could she have taken the tape rather than it just being misplaced?”
“Could she have? Sure,” Tracy said. “She certainly had access to it. Did she? That’s a more difficult question. I don’t know. What we do know is whoever helped Trejo definitely knew about evidence, the significance of it anyway. Not many people would have thought to wipe down the air bag.”
“It’s on every cop show on television,” Nolasco said. “Let’s not get carried away here.”
“The air bag?” Tracy said. “I must have missed that show.”
“They might have wiped the air bag in the process of wiping down the car,” Nolasco said. “I could see Trejo being at least that smart, or lucky.”
“Maybe,” Tracy said. “But would he have known that without the tape all the other evidence becomes circumstantial?”
“He might not have been thinking that far in advance,” Nolasco countered. “Like I said, blind luck. It does happen. Think of it another way—why would the defense attorney do it? What did she hope to gain?”
“According to the prosecutor, she had a competitive streak, didn’t like to lose,” Cerrabone said.
“I agree with the captain,” Tracy said.
“Anybody taking notes? That might be a first,” Nolasco said.
“We’re talking about a court-martial, loss of pay, dismissal . . . That’s an awful lot to give up just to get a win, especially under these circumstances,” Tracy said. “The alternative is Trejo may have some information detrimental to her or her career.”
“Blackmail?” Clarridge asked.
“I’m just trying to think of all the possibilities.”
“Do we know what she says happened?” Clarridge asked.
Tracy nodded. “I spoke to her last night. She says she had the evidence box the night before the hearing but isn’t certain the tape was in the box. I think it had to be.”
“Why?” Clarridge asked.
“Because it would have been too big a risk for someone else to have taken it before she had the box.”
“So it disappeared while she possessed the box,” Nolasco said. “That’s evidence she took it.”
“Yes, but she says she’d already looked at the tape and didn’t see the need to look at it again that night, nor did she have a television to view it.”
“Sounds like convenient bullshit,” Nolasco said. “If she already watched it, she knew Trejo was screwed. She didn’t need a TV to watch it again before she got rid of it.”
“Maybe not,” Tracy said. “But again, it’s a hell of a risk to take the tape when everyone knows you were the last person to check out the evidence.” She could see the others agreeing with her. “It makes more sense to take the tape after she returned the box to the evidence room.”
“Maybe she did,” Nolasco said.
“Maybe,” Tracy said.
“Or maybe the tape was simply misplaced,” Dunleavy said.
“NCIS interviewed the janitors,” Tracy said, “and the one who cleaned the first floor, and her office, doesn’t recall seeing any tape. He also said it goes against their company protocol to disturb anything in the offices. All they really do is empty the garbage and vacuum.”
Clarridge intervened. “Okay, so assuming it was in the box when Battles returned it, who else had access to get it?”
“Anybody with access to the court reporter’s office,” Tracy said. “It’s just across the hall from the courtroom. The prosecutor’s offices are also on that floor. However, from what I’m told, anyone coming into the building has to enter the last four digits of their Social Security number. So there’d be a record of who went into the building.”
“Could it have been Cho?” Clarridge asked. “Could he have taken it before he left?”
“He could have, but I can’t think of any reason why the prosecution would take it. The tape helped them,” Tracy said.
“Anyone else?” Clarridge asked.
Tracy shook her head.
“So either it was misplaced and lost,” Nolasco said, “or Battles took it.”
“Even if we reach that conclusion, it doesn’t answer the other questions, like who helped Trejo hide his car and get back to Bremerton that night.”
“They don’t have to be related,” Nolasco said. “It could have been his wife. What does she say?”
“Exactly what Trejo says,” Tracy said. “He was home that night.”
“So she’s lying for him, and Battles miscalculated the ramifications,” Nolasco responded. “Let’s not overthink this. We have enough on our plate as it is. If we get back involved, let TCI handle the investigation.”
“How long will it take the Navy to make up their mind if they’re going forward or not?” Clarridge asked Dunleavy.
“The preliminary hearing officer isn’t saying they shouldn’t go forward with a general court-martial, but she also didn’t mince her words: the case is significantly weaker without the tape, and the defense will surely exploit that weakness,” Dunleavy said.
“So Trejo just waits for the court-martial knowing the prosecution can’t meet the more stringent guilty standard,” Cerrabone said.
“That appears to be the Navy’s thinking as well,” Dunleavy said.
Clarridge sat back, biting his lower lip. “What can we charge him with, if we were to take back jurisdiction?”
“Absent the tape?” Dunleavy shook his head. “I’m not sure we can get anything to stick. He says he wasn’t there. Everything we would put forward would be circumstantial. The defense would almost certainly win a motion to exclude any mention of the tape, given that they can’t effectively cross-examine any witness who would testify that they viewed it. If the Navy is expressing reluctance to move forward—and they routinely take weaker cases to trial—I’m not sure we would want to do anything, especially in this particular climate,” Dunleavy said.
“I agree,” Nolasco said. “Better we stay out of it and let the Navy take the heat.”
“And what about that little boy, that mother?” Tracy said.
“It’s tragic,” Dunleavy said. “No one is saying it isn’t, but I’m not certain there’s anything we can do about it.”
“If I may,” Tracy said. The others in the room looked at her. “I was in the courtroom when the tape went missing. I was on the witness stand, facing the audience. I saw Trejo. I watched him. He had no reaction to the news.”
“So what are you saying?” Clarridge asked.
“I think he knew the tape was not coming in. I think he knew he was going to walk.”
“What you think is not—” Nolasco began before she cut him off.
“He was definitely in Seattle that night,” she said. “That’s a fact. I saw the store receipt and I saw the video. Forget whether we can prove it for the moment. He was there. He ran that kid down. And, he had help after the fact.”
“How do you know that?” Dunleavy asked.
“Because someone had to help him stash his car in the vacant lot behind that woman’s house—”