After Dark Page 3

  Packard suddenly recognized the panties as the ones Dana had taken off just before they got in bed. Dana had dropped them next to the bed before they started to have sex. That meant that Deems had been in their room while they were sleeping.

  "You were in my house?"

  "That's right, Bob."

  Packard bolted to his feet and shouted, "Listen, you prick . . ."

  "Prick?" Deems interrupted in a bemused tone. "That's a fighting word.

  Now, a fight between the two of us might be interesting. Speed and youth against size and power. But I want to give you a word of advice, Bob. If you start a fight with me, you better be prepared to kill me.

  If you leave me alive, I'll come for you when you least expect it and you'll die like Harold Shoe."

  Packard remembered Shoe's autopsy photographs. It was the medical examiner's opinion that Shoe's hands and feet had been removed with a chain saw while he was still alive. All the fight went out of Packard and he collapsed in his chair. He tried to compose himself. Deems watched patiently while Packard took several deep breaths.

  "What do you want from me, Charlie?"

  "I want you to play the game," he said grimly. "You don't really have a choice. Now, what is the value of these panties?"

  "Three-fifty? Four dollars?" Packard guessed, on the verge of tears. "I don't know."

  "You're too literal, Bob. Think about how I got these undies and you'll know their true value. I'd put it at about the same price as a lifetime of good sleep. Wouldn't that be worth fifteen thousand dollars? I'd say a lifetime of sound sleep is cheap at that price."

  Packard's jaw trembled. "Charlie, you have to be reasonable," he begged. "I don't have fifteen thousand extra dollars. You paid that retainer over a year ago. It's gone now. How about something less?

  What about three? Three thousand? I might be able to manage that."

  "Well, Bob, to me three thousand sounds like a kiss-off."

  Packard knew he could not afford to pay the money. His rent was due, there were car payments. Then he thought about the price he would pay if he could be assured that Charlie Deems would never slip into his room at night and spirit him away to a twisted world of torture and pain.

  Packard took his checkbook out of his drawer. His hand was shaking so badly that his signature was barely legible. Packard gave the check for fifteen thousand dollars to Deems. Deems inspected it, thanked Packard and opened the door. Then he turned, winked and said, "Sleep tight and don't let the bedbugs bite."

  Chapter THREE

  Salem, Oregon's capital, was a sleepy little city surrounded by farmland and located about fifty miles south of Portland on the I-5 freeway. The Oregon Supreme Court had been in its present location on State Street since 1914. The square four-story building was faced with terra cotta and surrounded on three sides by a narrow lawn. In the rear was a parking lot that separated the court from the back of another building that housed the Department of Justice and the offices of the Court of Appeals.

  There were vans with network logos parked in front of the court when Tracy Cavanaugh arrived for work at 8 A. M. She glanced at them curiously as she strolled down the side street that divided the court from the grounds of the State Capitol. A radiant July sun made the gold statue of the pioneer on top of the Capitol building shine and gave the grass in the small park that bordered the Capitol the brilliance of a highly polished emerald. In keeping with the spirit of the day, Tracy wore a bright yellow dress and wraparound shades.

  Tracy was at the tail end of a year serving as Oregon Supreme Court Justice Alice Sherzer's law clerk. Judicial clerkships were plums that fell to top law school graduates. Each justice had a clerk who researched complex legal issues, drafted memos about other justices' positions and checked opinion drafts to catch errors before the opinion was published. A judicial clerkship was a demanding, but exciting job that lasted one to two years. Most clerks moved on to good positions with top law firms, which coveted these bright young men and women for their skills as well as their intimate knowledge of the way the justices thought.

  Laura Rizzatti was as pale as Tracy was tan and possessed the delicate features and soft, rounded figure of a Botticelli model.

  When Laura was deep in thought, she played with her long black hair. She had several strands wrapped tightly around her left index finger when Tracy poked her head into Laura's closet-sized office.

  "Why are the TV reporters waiting outside?"

  Laura dropped the transcript she was reading and rose halfway out of her chair. "Don't do that!"

  "Sorry." Tracy laughed, tilting her head sideways to see what had occupied Laura's attention so completely. She saw the title of the case and "Vol. XI" before Laura turned the transcript over so Tracy could no longer read the cover.

  "The Deems case?" Tracy said. "I thought we reversed that a month ago."

  "We did. What did you just ask me?"

  Tracy looked up from the transcript and noticed the dark circles under Laura's eyes. Laura's clothes were disheveled and she looked like she'd been up all night.

  "The TV people. What are they doing here?"

  "Matthew Reynolds is arguing Franklin v. Pogue at nine."

  "Reynolds! Let me know when you go up to court."

  "I'm not going."

  "How come?"

  "Justice Griffen took himself off the case, so there's no reason to sit in on the argument."

  "Why'd he recuse himself?."

  "His wife is arguing for the state."

  "No shit." Tracy laughed.

  "No shit," Laura answered bitterly.

  "She is one smart cookie."

  "She's a bitch. She could have asked another DA to argue the state's position."

  "Then Justice Griffen would have sat on the case. Now he can't sit because the state is represented by a member of his family. So she gets rid of the most liberal justice on the court and ups her chance of winning. I call that smart lawyering."

  "I think it's unethical."

  "Don't take this so personally."

  "I'm not," Laura said angrily. "But the judge is such a nice guy. The divorce is eating him up. Pulling a stunt like this is just pouring salt in his wounds."

  "Yeah, well, if she's as big a bitch as you say, he's better off without her. And you should see Reynolds argue anyway. He's amazing. Do you know he's been defending death penalty cases all over the United States for twenty years and he's never had a client executed?"

  "Reynolds is just another hired gun."

  "That's where you're wrong, Laura. These cases are like a mission for him. And he's a genius. Did you read his brief in State v. Aurelio?

  His Fifth Amendment argument was absolutely brilliant."

  "He's smart, and he might be dedicated, but it's to the wrong cause."

  "Don't be so uptight. Listen to the argument. Reynolds is really worth seeing. I'll check with you before I go up." i iiiiiiiiiiiiiii The most conspicuous feature of the Oregon Supreme Court is a stained-glass skylight in the courtroom ceiling that displays the state seal. The stained glass is protected by a second, clear skylight above it. On this sunny day, the light filtering through the two sets of glass cast a soft yellow glow over six justices of the seven-member court as they assembled to hear argument in State ex rel.

  Franklin v. Pogue.

  Tracy found a seat on a couch against the rear wall of the courtroom just after the justices took their places. The judges sat on an elevated dais that stretched across the courtroom in a gentle curve.

  Directly in front of Chief Justice Stuart Forbes was the wooden podium on which Abbie Griffen calmly arranged her papers. When the Chief Justice told her to commence her argument, Abbie said, "If it please the court, my name is Abigail Griffen and I represent the Multnomah County district attorney's office and the interests of Denise Franin. We are asking this court to order trial judge David Pogue to withdraw an order commanding Mrs. Franklin to open her home to forensic experts employed by the defense."

  "
Judge Pogue was acting on a motion for discovery filed by the defendant, Jeffrey Coulter, wasn't he, Ms. Griffen?" asked Justice Mary Kelly, an attractive woman in her mid-forties who was appointed to the bench after a stellar career in corporate law.

  "Yes, Your Honor."

  "What was the basis for the discovery motion?"

  "According to the affidavit of Mr. Reynolds, the defendant's attorney, Denise Franklin's son, Roger, pi'omised to sell Jeffrey Coulter stolen jewelry. Coulter went to Franklin's house, but Franklin had no jewelry and tried to rob Coulter. Mr. Coulter claims he shot Roger Franklin in self-defense after Franklin shot at him."

  "And the defense wants to examine Mrs. Franklin's house for evidence that will corroborate the defendant's story?"

  "Yes, Your Honor."

  "That seems pretty reasonable to me. What's wrong with Judge Pogue's order?"

  "Mrs. Franklin is in mourning, Your Honor. She doesn't want agents of the man who killed her son traipsing through her home."

  "We're sympathetic to Mrs. Franklin, Counselor, but it's not unusual for witnesses to also be relatives of a murder victim.

  They're inconvenienced all the time by police interviews, the press.

  Your people went through the house, didn't they?"

  "With Mrs. Franklin's consent and while the house was a crime scene.

  It's no longer a crime scene. The state has returned the house to its owner, Mrs. Franklin, who is not a party to the criminal case between the state and Mr. Coulter. A judge doesn't have the power to order a nonparty to let the defense in her house."

  "Do you have legal authority for that contention, Counselor?"

  Griffen smiled with the confidence of an attorney who has anticipated a question. While she told Justice Kelly about several Oregon cases that supported her position, Tracy looked across the courtroom at Griffen's opponent. The contrast between the two attorneys was stark. Abigail Griffen in her black tailored jacket, black pleated skirt, ivory silk blouse and pearls looked like a fashion model, while Matthew Reynolds in his plain, ill-fitting black suit, white shirt and narrow tie seemed more like a country preacher or an undertaker than America's premier criminal defense attorney.

  A question by Justice Arnold Pope pulled Tracy's attention back to the legal argument.

  "Mrs. Griffen, when Mr. Coulter was arrested did he claim he acted in self-defense?"

  "No, Your Honor."

  "Did the police find the gun the defendant's counsel alleges was fired by the deceased?"

  "No weapon was found at the scene."

  Pope, a barrel-chested ex-DA with a Marine crew cut, furrowed his brow, giving the impression that he was deep in thought. Justice Kelly rolled her eyes. Pope was a mental lightweight who tried to compensate for his lack of intelligence by being arrogant and opinionated. He was on the court because he had defeated a well-respected incumbent in one of the dirtiest judicial races in Oregon history.

  "Could this self-defense business be hokum?" Pope asked.

  "Yes, Your Honor. We believe Mr. Coulter manufactured the self-defense scenario."

  "Perhaps with the assistance of Mr. Reynolds?" Pope asked.

  Tracy was shocked by Pope's suggestion that Matthew Reynolds had sworn falsely in his affidavit. Reynolds was rigid, his face flushed.

  "There is no evidence that Mr. Reynolds has been less than honorable in this case, Justice Pope," Abbie answered firmly.

  "Besides," Justice Kelly interjected to shift the discussion from this unpleasant topic, "that issue isn't before us, is it, Counselor?"

  "No, Your Honor."

  "As I understand it," Kelly continued, "your position is that we must set aside the order of Judge Pogue, regardless of the truthfulness of the affidavit, because he had no power to order a nonparty to a criminal case to do anything."

  "Exactly."

  A tiny lightbulb at the front of the podium flashed red, indicating that Griffen's time was up.

  "If the court has no further questions, I have nothing more to add."

  Chief Justice Forbes nodded to Griffen, then said, "Mr. Reynolds?"

  Matthew Reynolds uncoiled slowly, as if it took a great effort to stand, and walked to the podium. He was determined not to let his anger at Arnold Pope interfere with his duty to his client.

  Reynolds took his time arranging his papers and put the insult behind him. As soon as he looked up, Justice Frank Arriaga, a cherubic little man with an easy smile, asked, "What about Mrs. Griffen's argument, Mr.

  Reynolds? I've read her cases and they seem to support the state's position."

  There was a hint of the Deep South when Reynolds spoke.

  His words rolled along softly and slowly, like small boats riding a gentle sea.

  "Those cases should not control this court's decision, Justice Arriaga.

  The facts in the case at bar are substantially different.

  Mrs. Franklin is far more than a grieving mother. We believe she may be covering up her son's criminal involvement in an attempted robbery.

  Every moment we are barred from the Franklin home presents another chance for Mrs. Franklin to destroy evidence.

  "And that leads me to my main legal point. The Due Process Clause of the United States Constitution imposes a duty on a prosecutor to preserve evidence in her possession that is favorable to an accused on either the issue of guilt or the issue of punishment. When we filed our motion with Judge Pogue, the Franklin home was still sealed as an official crime scene. Our affidavit put the state on notice that we believed the Franklin home contained evidence that would clear Mr.

  Coulter and it also put the state on notice that we believed that Mrs.

  Franklin might destroy that evidence. Soon after we filed our motion, the police unsealed the crime scene and returned the home to Mrs.

  Franklin. We consider that a violation of the state's duty to preserve evidence favorable to an accused."

  "Can we approve an order issued by a judge who lacks the authority to make it?" Justice Arriaga asked.

  "No, but we believe the court should address this issue as if the house was still under seal and an official crime scene. Otherwise, the state can frustrate legitimate motions of this sort by simply unsealing the scene before the court has the opportunity to act.

  "The Due Process Clause codifies the concept of fundamental fairness into our law. It's a wonderful thing to have a jurisprudence based on fairness rather than power. You can see the tension between these two ideas in this case. The state symbolizes power. It used that power to take over the home of a private citizen so it could investigate a crime.

  Once the state was satisfied that it had identified the criminal, it used its power to arrest my client and deprive him of his liberty.

  "These were proper uses of power, Your Honors. Fair uses.

  But the state's final use of its power was unfair. As soon as my client stood up to the state and requested an opportunity to examine the crime scene for evidence that would clear his name, the state exercised its power unjustly.

  "Legal motions should be decided by unbiased judges, not unilaterally by zealous advocates. When the police released the crime scene to thwart our motion, they acted in violation of the concept of fundamental fairness that is the foundation of the Due Process Clause. All Mr.

  Coulter is asking for, Your Honors, is a chance to examine the crime scene. The same thing the state was able to do through the exercise of its power. All he is asking for is a fair shake. Judge Pogue understood that and we ask you to be fair and permit his order to stand."

  Court recessed when the argument ended. Matthew Reynolds watched Abigail Griffen collect her papers and close her attach( case. In a moment, she would be fighting her way through the reporters who were waiting for them outside the courtroom on the third-floor landing. If he was going to talk to her, Reynolds knew it had to be now. Abbie started toward the door. "Mrs. Griffen."

  Abbie turned to find Reynolds following her. With his suit jacket flapping behind him lik
e the wings of an ungainly crow, Reynolds looked like Ichabod Crane in flight from the headless horseman.

  "Thank you for telling the court that you didn't believe I would falsify my affidavit," Reynolds said with a tremor Abbie had not heard when he was arguing. "My reputation means so much to me."

  "No need to thank me, Mr. Reynolds. But I'm curious. That was such an odd accusation to make. Is there bad blood between you and Justice Pope?"

  Reynolds nodded sadly. "I tried a murder case against Arnold Pope when he was the district attorney for Walker County. It was poorly investigated and an innocent man was arrested. Justice Pope had a penchant for trying his cases in the press when he was a prosecutor and he promised a swift conviction."

  "I take it he didn't deliver."

  "No. After the trial, he threatened to indict me for jury tampering."

  "What happened?"

  "The judge told Pope he lost because he should have, and promised to dismiss any jury-tampering indictment Pope obtained. That was the end of it as far as I was concerned, but I guess he still harbors a grudge."

  "I'm sorry to hear that."

  "That's gracious of you, considering that Pope's animosity guarantees you his vote."

  "On the other hand, some of the judges will side with you simply to be on the other side of Pope's position."

  "I hope you're right, Mrs. Griffen," Reynolds answered solemnly, the joke going right by him.

  "Why don't you call me Abbie. We're going to see too much of each other during this case to stay on formal terms."

  "Abbie, then."

  "See you in court, Matt."

  Reynolds hugged his briefcase to his chest like a shield and watched Abigail Griffen glide through the courtroom doors.

  The reporters converged on Matthew Reynolds as soon as he walked into the hall, and Abbie was able to escape down the marble stairway and leave the courthouse through the rear door.

  Her car was parked around the block from the court because she'd expected the press. Reynolds could go nowhere without them. When she rounded the corner, she saw Robert Griffen sitting in the passenger seat of her car.