‘‘But the Court wants to get at the truth,’’ Barbara said. ‘‘This is a fact-finding hearing. The Court can relax the technical rules in the interests of justice.’’
‘‘There are good reasons for technical rules, Your Honor,’’ Nina interrupted. ‘‘And the Court can’t relax the rule relating to marital privilege. We claim the privilege. The communication was made in confidence between the husband and wife. Even in the less formal preliminary hearing the privileges of confidentiality hold. Why? Because once the privilege is broken, you can’t repair the break.
‘‘As section 985 of the Evidence Code states, the only exception is when the spouse who holds the privilege, waives it. Then the other spouse may testify. In this case, Your Honor, we have never and will never waive that privilege. Let me make myself clear on that point.’’
She glanced at Jim. He was nodding, pleased. She held her breath. It was up to Barbara now.
Had she heard what Nina had said? Everything that she had said? Had she heard Nina discuss an exception to the marital privilege? Had she heard Nina’s slight misstatement?
Had Nina reminded her that there were in fact other exceptions?
Collier would have picked up on it immediately. Barbara didn’t know the law of the case well yet.
A fine line appeared between Barbara’s stenciled brows. Nina saw that fine line, willed it to deepen, willed her to open her mouth and say the right thing . . .
Barbara looked at the clock and said, ‘‘Your Honor, I wonder if we could finish this argument after the lunch break. I have a telephone conference at twelve sharp back in my office.’’
Flaherty said, ‘‘Mrs. Reilly?’’
‘‘We object to stopping now, Your Honor. Miss Banning is on the run and she’s hoping she’ll think something up over the lunch hour. Really, there is no reason to continue. We don’t intend to put on a defense and we are ready to submit this matter for the Court’s decision now. Let’s not drag it out.’’ Now she prayed, Let him be as good as I think he is . . . let him overrule me . . .
‘‘Well,’’ Flaherty said. ‘‘I guess we can spare ten more minutes on this after lunch. After all, it’s the second go-round in a murder case. I’m going to adjourn until one-thirty.’’
Barbara left immediately. Out in the hall again, Jim said sullenly, ‘‘She’s really hanging this up. We should be done by now.’’
‘‘I want it over too. I’m doing everything I can. Now, I’m leaving until one-thirty.’’
‘‘We could have lunch together. That would be a good idea.’’
She stuck her chin out and said, ‘‘I’ll do the prelim. But don’t expect me to smile at you, you son of a bitch.’’
‘‘You shouldn’t talk to me that way.’’
‘‘You shouldn’t have threatened my family.’’
He watched her go.
She drove to the lake, which was mogulled with whitecaps left from yesterday’s storm.
She had done what she could.
It was all up to Barbara, from here on out. The deputy D.A. was new to criminal law, she had been thrown into the case, and she hadn’t done the legal research herself. She had used Collier’s old briefs on the marital privilege question.
But she was very bright. How bright? Nina was about to find out. If Nina had read things right, Barbara had frowned and had manufactured an excuse to allow her time to go back to her office and read the Evidence Code.
Jim had had no idea what was going on, of that, Nina was sure.
She sat in the Bronco, looking at the lake, sick with fear.
One-thirty. They were all there. Barbara had come marching in, not deigning to look at them. Collier had returned. This time, he sat down in the second chair at the counsel table with Barbara. Nina hoped they had spent the whole lunch hour together. She made herself look serene, even bored. Jim sat beside her, scowling, anxious to be set free.
‘‘Where were we?’’ Flaherty said. ‘‘Oh, yes, ten more minutes arguing about this statement of Heidi Strong.’’
Barbara was already on her feet. ‘‘If I may continue?’’
‘‘Proceed.’’
‘‘As I was saying, the death of Heidi Strong casts a whole new light on the admissibility of her declaration.’’ Actually, Barbara hadn’t said that, but she was saying it now. ‘‘Let’s look at this declaration in an entirely new way. There is an exception to the marital privilege that was not previously applicable to this matter. But it is now.’’ She paused to look at some scribbled notes.
‘‘There is no confidentiality privilege when the testimony is relevant to a crime against the spouse,’’ she continued. ‘‘For example, in the case of
People v. Michaels,
the husband threatened the wife numerous times prior to beating her severely a month after the threats began. No one overheard these threats. Only the wife could testify about them. She was able to do so, because the crime involved was against her. The privilege doesn’t apply in such a case.’’
It was Barbara’s finest moment, but Nina would never be able to congratulate her on it. Now, if she could just keep it up.
‘‘What relevance does that have here?’’ Nina asked. ‘‘The defendant isn’t charged here with murdering his wife. Mrs. Strong couldn’t have been a witness in this proceeding because of the privilege, so the declaration can’t come in as evidence of retaliation against a witness. She’s just blowing smoke, Your Honor.’’ Some of her desperation unintentionally seeped into her voice. Fine. Maybe Jim would mistake it for sincerity.
‘‘Let me take this one step further, Your Honor,’’ Barbara said. ‘‘We have established that the privilege is waived insofar as the declaration is offered to show a crime against the spouse. My point is, whether Mr. Strong killed his wife is relevant in this case,
not
because she might have been a witness, but because it is evidence of other similar crimes.’’
She had gotten it out. Other similar crimes was the right theory. Heidi’s declaration, like the live thing it was, had evolved into something else.
Barbara went on, ‘‘If the Court will remember, yesterday we argued the defendant’s motion to exclude evidence of prior malicious acts of the defendant. The People lost that motion. The alleged malicious acts had occurred too far in the past.’’
Flaherty nodded his head, looking puzzled. Nina made her face look puzzled too.
‘‘I now move that the declaration of Heidi Strong be admitted on grounds that it is evidence of a
subsequent
act of malice. It couldn’t be more recent. It is relevant to show, not the bad character or predisposition of the defendant, but his commission of another, similar crime in the same time frame. Look at the similarities, Your Honor. A close family member. Look at the brutality evident in both crimes.’’ She paused. Flaherty was thinking hard. Nina managed to look astonished.
Work it, Barb, she thought.
‘‘Let me see if I follow this argument,’’ Flaherty interrupted. ‘‘You’re piggybacking. You’re saying that the marital privilege is no longer a problem, since the declaration is now evidence that Mr. Strong may have murdered his wife. And second, you are saying that whether Mr. Strong committed this other alleged crime is relevant to the charge in this Court because it is evidence of other similar crimes. It is my recollection that evidence of other similar crimes may be admitted in the Court’s discretion, whether or not there has been a conviction or even a trial of the other crimes.’’
‘‘That is correct, Your Honor.’’
‘‘Your Honor,’’ Nina said. ‘‘The defense has been surprised by this oral motion which it has not had time to study. It should not be raised at this time. I strongly object to the motion on that ground.’’ She went into a harangue about how there were no similarities, about how the prosecution was trying to sneak in something that was inadmissible, and on and on, saying all the right things and hoping Flaherty wasn’t listening, until Flaherty raised a hand and cut her off.
‘‘Do you wish to request a continuance to respond to it, counsel? You seem to be well versed on the issue and many of these matters are already touched on in your brief.’’
Jim shook his head vigorously. Nina said, ‘‘We do not want a continuance. The defendant has been through enough already. We want the matter decided today.’’
‘‘Well, if you don’t want to continue the matter, I’m going to decide this oral motion, then,’’ Flaherty said.
Nina remained standing. She didn’t want to have to sit down next to Jim.
‘‘I think the prosecution raises a compelling argument,’’ Flaherty said. ‘‘One of the interesting things about it is that if the marital privilege is out of the way, the Court has broad discretion to rule on the relevancy question.’’
‘‘This is an inquiry into a murder!’’ Nina said. ‘‘This is no time to relax the rules!’’
‘‘All right, I’ve heard enough,’’ Flaherty said. ‘‘Both of you, sit down. I’m going to take a ten-minute break and read the Evidence Code and the annotated cases.’’
‘‘But Your Honor!’’ Nina said loudly.
‘‘Sit down, counsel!’’
She sat down. The judge disappeared. Barbara disappeared into the hall with Collier. The clerk whittled at her fingernails. The clock ticked. ‘‘Nina?’’ Jim whispered. Nina shrugged, hoping he did not look at her hands, which were almost bleeding as she dug her fingernails into them.
The ten minutes stretched to fifteen.
Flaherty came back in and took his place on the bench. ‘‘All right, we’re back on the record. Now then, I read some of the cases having to do with subsequent acts of malice. Don’t jump up, Mrs. Reilly, they’re only cases already cited in both parties’ briefs in connection with the motion to exclude we heard yesterday. You’ve both read and cited them.
‘‘Now. Yesterday I was disinclined to bring in Kelly Strong’s testimony about prior acts of malice. The acts were more than ten years old and none of them included a murder.
‘‘This is different. A murder of someone close to the defendant has been committed within weeks of the death of the victim in this case, also someone close to the defendant. The evidence tends to show a similar course of conduct—that the defendant may seek to retaliate violently against those family members who aggrieve him in some way.
‘‘The Court will exercise its discretion to admit this declaration, which tends to show probable cause to believe a crime was committed against defendant’s wife by defendant, which in turn tends to show a similar course of conduct on the part of defendant in this case. Now. We’ve gotten past the preliminaries. Let’s have a look at this declaration.’’
Nina shook her head and looked unhappy and beaten. Barbara cast her a triumphant and contemptuous look. Collier leaned back in his chair with a look of grim satisfaction on his face. Jim sat biting his lip while Flaherty read.
‘‘I KNOW WHAT YOU DID.’’ Nina was remembering Heidi’s Post-it note. Jim had destroyed that. But her declaration was right here in Flaherty’s face, telling about the bathroom mirror and Jim’s rage against his brother.
It was the connection Flaherty had been looking for. That was clear a minute later as he said brusquely, ‘‘The Court will now render its decision.’’ He read the boiler-plate speech he gave at the end of each preliminary hearing, then said, ‘‘The Court finds that there is probable cause to believe that the crime of murder has been committed in this matter, and further, that there is probable cause to believe that the defendant committed the said crime.’’
The clerk smiled at Barbara. ‘‘She wasn’t supposed to do that.’’ Nina whispered to Jim. ‘‘He’s bound you over for trial.’’
‘‘What?’’
‘‘We’ll set a trial date next week,’’ Flaherty said. ‘‘Anything else, Miss Banning?’’
And now Nina was trying to still the trembling all over, trying to stay still so Jim wouldn’t know, rooting for Barbara to stand up and say—
‘‘The People move that the defendant be immediately remanded into custody,’’ Barbara said. ‘‘Probable cause has now been found in this brutal crime. The defendant faces a trial. And furthermore, another murder has occurred and there is probable cause to believe the defendant may be involved in it.’’
‘‘There’s no such probable cause, Judge!’’ Nina cried, standing up and putting a pleading tone into her voice, praying Flaherty would pay no attention to her.
‘‘Maybe not, but there’s an investigation going on right now and plenty of reason to believe the defendant may be a flight risk,’’ Barbara said.
She was doing so well, just fantastically well, and Jim was about to be led away—Nina was jabbering something so it would sound like she was opposing a remand . . .
But Flaherty wasn’t as smart as Barbara. At the very last moment, when Jim was about to be safely neutralized, Flaherty made a mistake.
‘‘I think we’ll have to schedule a formal bail hearing on that,’’ Flaherty said.
Collier jumped to his feet. ‘‘He’s a danger! The Court should remand him to custody immediately!’’
Flaherty said dryly, ‘‘Sit down, counselor. I’ll hear your motion on Monday morning at eight A.M. So ordered.’’ He wiped his brow and took his leave, while Nina stood there, stunned.
‘‘It was Heidi,’’ Jim said. ‘‘Coming back to haunt me. Lousy rotten timing! But I’ve got until Monday. What will happen then?’’
‘‘I don’t know.’’
‘‘Don’t give me that!’’
‘‘I’ll try to arrange bail for you, but—there’s Heidi. It was hard enough keeping you out the first time.’’
‘‘You’re telling me they’re going to put me away?’’ It was finally his turn to look terrified.
‘‘I’ve come this far,’’ Nina said. ‘‘I’ll do that hearing for you.’’
Jim wasn’t thinking about Monday. He looked off to the side, calculating.
She thought, yes, the son of a bitch is going to run.
Run, run, you son of a bitch, she said to herself, but took care to keep her hope out of her expression. ‘‘I did everything I could for you, Jim. You saw for yourself. You’re not going to blame me for what happened in there, are you?’’
He gave her a chilling look. ‘‘But you didn’t win.’’
‘‘I did the best I could. Don’t come near me or mine,’’ Nina said. ‘‘I’ll be protected. Do you understand?’’ He’d watched and listened to her fight for him, and he couldn’t have noticed the way she had steered Barbara toward that second exception.