"Funny how that works. Do somebody a favor and it comes back to bite you in the a.s.s."
"The law is not politics," I tell him. "That is, if it works right."
He smiles. "Of course not. Which brings us to the reason for today"s meeting. Some pretty fortuitous events," he says, "the death of a witness on the eve of testimony. I"ll bet that hasn"t happened in one of your cases before?"
"Not that I can recall," I tell him.
"Obviously it"s thrown a glitch into the people"s case."
"We noticed," says Harry. Harry"s getting tired listening to the bulls.h.i.t. He wants to cut to the chase. "Why did you call us in here?"
"We still think we have a solid case against your man. Don"t get me wrong," says Tate.
"Is that why you called? To tell us you have a solid case?" I ask.
He looks at Tannery, smiles. "No. I called you here to discuss a possible resolution. As it stands, your client can"t be sure he"s gonna beat the wrap. Don"t misunderstand; the Epperson thing throws up some dust. It may not be quite as clear as it was before, but there"s still the question of the cable ties in his pocket, the tension tool in his garage, the fact that he and the victim were not on good terms. The medical evidence points to a skilled hand dismembering the body. There"s plenty there for a jury to chew on," he says.
"And given this . . . mountain that we have to climb, what are you prepared to offer?"
"A solution that provides your client with a more certain result," he says.
"What? You gonna pump the poison directly into his heart instead of his arm?" says Harry.
"What if the result avoids the death penalty?" says Tate. "Perhaps a life sentence without possibility of parole."
"Not a chance," I tell him.
Tate looks over at Tannery once more. The expressions that are exchanged between the two lead me to conclude that this was not Tannery"s idea. He knows he doesn"t have the leverage, but you can"t blame Tate for trying.
"Okay. Second degree," he says. "We drop all the special circ.u.mstances, he gets fifteen to life; with good behavior he could be out in ten. That"s as good as it gets," he says.
I look at him, say nothing, Mona Lisa smile on me.
"Fine, we"ll sweeten it a little." Tate doesn"t know when to stop talking. "Your guy pleads out, we agree not to bring any charges regarding the Epperson thing as to him, if he cooperates with us."
"Cooperate how?" I ask.
"Tells us what happened."
"No problem. Mr. Epperson committed suicide," I say.
"And you believe that?" he says.
"The last time I looked, there was nothing in the Evidence Code giving rise to presumptions based on what I believe. But I think if you look at the facts they might bear it out. Do you have evidence that Epperson didn"t commit suicide?"
Tate doesn"t have good lawyer"s eyes; perhaps that is why he left the courtroom and became a politician. His big brown ones say, No.
He swallows, clears his throat, looks over at Tannery. "Evan, maybe you should get involved here."
Tannery edges over. "It"s a good deal," he tells me. The devil in front of me, and the devil in my ear.
"I"ll take it to my client," I say.
"Will you recommend it?" says Tannery.
"No."
"Why not?"
"Because your case is in a ditch. I"d have to be incompetent to recommend a deal like that.
Tannery looks at me; his eyes get wide.
"All the testimony regarding my client"s alleged motive to kill Kalista Jordan, the supposed racial genetics studies intended to inflame the jury, that"s all out. Everything Tanya Jordan testified to is hearsay without Epperson, so all you have are some nylon cable ties and a tensioning tool found in the defendant"s garage, that and some bad blood between Crone and Jordan. At worst, this can be characterized as a severe case of professional differences. What"s more," I tell them, "did you know that Epperson asked her to marry him? That she turned him down just a few days before she disappeared?"
I can tell by the look on their faces that this is news.
"Who told you that?"
"You want to find out, we"ll do it in court," I tell them. "On the other side of the slate, you now have a suicide note and a confession typed on Epperson"s computer admitting that he killed her."
"Unsigned," says Tate.
"Did you find anybody else"s fingerprints on Epperson"s computer keyboard?"
Dead silence.
"I didn"t think so. You have the physical evidence at the scene, which is consistent with suicide. You have cable ties and a tensioning tool found at Epperson"s."
"Very convenient circ.u.mstances," says Tate.
"Convenient or not, the jury is more than likely to find reasonable doubt in those circ.u.mstances."
I wait a beat to see if they want to contradict this. They don"t.
"I will a.s.sume silence as a.s.sent," I tell them. "And we have an order by the trial judge compelling you to deliver whatever other evidence is in your possession regarding Epperson"s death to us by tomorrow morning. I"d say we"re in pretty good shape. I think we"ll wait."
Tate"s eyes get beady, little slits of meanness. "We won"t give up on Epperson"s murder," he says.
"That"s going to be a problem for you."
"Why?"
"Because first you"re going to have to prove it was murder, and then you"re going to have to find a witness willing to commit to perjury."
"What are you talking about?" he says.
"I"m talking about a witness willing to connect my client to Epperson"s murder. Dr. Crone was in jail." I watch Tate"s eyes. If he has something, he isn"t showing it. My guess is, they had Aaron Tash stashed somewhere, in the library or another office, while Harry and I cooled our heels. They either didn"t pump enough fear into him, or he doesn"t know anything, though after seeing him on the street I have my doubts on the latter score.
They may still have him tucked away, hoping we will give them an opening, something they can carry back down the hall and use to sweat him, tell him that Crone has agreed to cut a deal, that he, Tash, may be left to swing on his own for Epperson.
"So you"re not willing to deal?" asks Tate.
"Not on those terms," I tell him.
He settles back in his chair, sucks some air and lightly scratches his cheek with the back of the fingernails of one hand, la The G.o.dfather. All the moves are well practiced.
"You know, even if your man beats the wrap on Jordan, there"s no double jeopardy on Epperson and no statute of limitations." Eye to eye, and he just blinked, admitting they can"t win on Jordan"s murder.
"He"ll have to discuss that with his next lawyer," I tell him.
Tate smiles, shakes his head. "There"s been a lot of press interest on this one," he says. I can almost hear the sparks jumping the synapses in the brain, sinuous threads of smoke as they overload.
"That press can only get worse if he"s acquitted," I tell him. "You take it to a jury, given the evidence, and the press is going to wonder why, and so is my client who is likely to lose his job at the university. A lifetime of tenure."
"We"re talking about a woman who lost her life," says Tate.
"No, we"re talking about evidence you don"t have."
Tate has survived this long by knowing when to cut his losses. If he presses, in light of the new evidence, and he loses, the county could be facing an eight-figure lawsuit for malicious prosecution or abuse of process.
At this moment, Tate is the picture of a prosecutor in a box, and he knows it. It"s why he called us in. If he agrees to a motion for dismissal, he may be haunted by that decision if evidence later develops that Crone was in fact involved in Epperson"s death. Any good defense attorney would look Tate"s deputy prosecutor in the eye in a courtroom and, on closing argument, ask the jury why the prosecutor"s office agreed to dismiss murder charges against the defendant in an earlier case. Their answer might be That was a different case. Still, if Crone was such a bad actor, why did they let him go? Conviction or not, it won"t make the office look good, and Tate is the office.
"I have to think about it," he says.
"I wouldn"t think too long. Tomorrow morning we get the evidence, whatever you have in Epperson"s death. After that, my client is not going to be willing to deal. Unless you"ve got some solid evidence, you"re going to have to dismiss or face the wall if he"s acquitted. The county board of supervisors is not going to be happy raising taxes to pay for a zillion-dollar lawsuit."
He tries to argue prosecutorial discretion, sovereign immunity. Harry and I take up seats at the other side of the room on the couch pretending not to listen as Tate huddles with Tannery, who brings him current: that these protections have been eroded by recent court decisions. Prosecutors who abuse their discretion, based on the evidence, can get nailed big-time. The look on Tate"s face says it all. He settles back in his chair, wags a finger for us to join him again. Harry and I cross the room and sit down again.
"So what are you gonna do for us if we agree to some kind of a deal?"
"You"ll join in a motion for dismissal?"
"We won"t join in the motion," says Tate. "But we won"t oppose it, based on evidence as we know it at this time, and in the interests of justice."
"Of course." I consider my options. We have to throw them some kind of a bone. "Subject of course to my client"s consent, he will waive his right to bring any civil action against the county for his arrest or trial to this point."
I study Tate"s eyes. He doesn"t even blink. "Good." He"s up out of the chair, shakes my hand, all smiles.
I realize what has gone down is a show, something for our benefit. This was all Tate was looking for from the moment he walked through the door, civil immunity. What in the h.e.l.l is going on?
The following morning, we craft the details of settlement. Harry and I camp with Crone at the jail. He is elated with his good fortune, but wants me to talk to the university about reinstatement. I caution him not to get the cart before the horse. He is more than willing to waive any rights to sue, but we counsel him anyway. Clients in this situation are always jumping to give up everything, a.s.suming their lives will click right back into place. That is almost never the case.
"What if they don"t take you back?" I ask.
"What do you mean?"
"The university."
"Why wouldn"t they?"
"There"s the question of the s.e.xual hara.s.sment complaint filed by Jordan."
"But you said that died with her."
"Yes, but now they"re on notice."
"I don"t understand?"
"Think of it like a dog-bite case," says Harry. "It"s a question of dangerous propensities. You have a pet, a little dog. The dog has never attacked or bitten anybody. Then one day a neighbor"s kid comes in your yard. The dog attacks and bites him. Who knows why; maybe the kid tormented him. The parents go to court. That one bite may not cost you much. But now you have a problem. You know your dog has bitten once. That puts you on notice that he has dangerous propensities. The next time he bites and someone sues, you may lose your house."
"You"re saying I"m like the dog?"
"We"re saying the university may see it that way. They may decide they"re better off not to take the chance. If they take you back and some other employee later files on you, s.e.xual hara.s.sment or discrimination, the damages for the employer can be excessive. They"re the deep pocket."
"Can they do that? I mean, I have tenure."
"They can do whatever they want; the question is whether the courts will grant relief to you after they do, and whether you can afford that relief if it drags out."
He thinks about this. "How long would it take?"
"It could take years," I tell him. "Between administrative hearings, writs in court and appeals. And it could cost a considerable fortune."
"The money"s no problem," he says. "But the time. Is it possible I could work, at the center, at my old job, while this was going on?"
"Doubtful," I tell him. "It would depend on the university"s position, what the courts might order."
"We don"t know whether they"ll take me back," he says.
"No, we don"t, but the prosecutors want an answer this afternoon as to their offer."
"What should I do?"
"There"s only one thing to do," says Harry, "and that"s to take it. We"re telling you because if you lose your job, you wouldn"t be able to go back and sue the county for bringing the criminal charges."
"d.a.m.n it," he says. "I don"t care about the money."
"That"s fine. Then you have nothing to lose," says Harry.
Crone slumps noticeably in his chair. "I have my position to lose, my reputation."
Neither Harry nor I have an answer for this.