"The notes aren't clear," says Harry.
"Where was she in the apartment?" She wasn't in her bed when I looked, but I can't tell Harry this. Cops found her in a closet. In the hallway, " he says. "Huddled up in the shadows." The door that was open a crack, that I peered through.
Lenore has the look of cold sweat as her eyes lock on mine.
We have to find out what she saw. Get a specific order for discovery," I tell him. "We need to nail it down early."
"What about the witnesses?" says Lenore. "Any of the neighbors see or hear anything?"
"A statement from one upstairs neighbor," he says. "She heard some thing chat could have been a scream about seven-thirty."
"It could fix the time of death," I say. "See how this fits in our case."
"Anything else?" Lenore means witnesses. "Not that night," says Harry.
"What's that supposed to mean?" I ask.
"One of the neighbors said she heard a lot of arguing from Hall's apartment a couple of weeks before. Lotta noise. Angry words. A male voice," says Harry. "Next day, Hall comes out other place with a shiner."
"Any clue as to the male voice?" Harry shakes his head. "If the cops know, it ain't in their report."
"Check with the neighbor," I tell him. "What about the guys who found the body? In the alley?"
"Transients, all three. Names we have. Addresses?" He gives a shrug. "Sixteen hundred Dumpster Manor," he tells me.
"How do we find them if we want to take a statement?" "Good point," says Harry. "Knock on the lid?"
"Any driver's license numbers?" "You gotta be kidding."
"Fine. What do they say in the report?" Harry makes a big goose egg with his fingers.
"No statements?"
"Nada. Just their names and a note by the first officer on the scene that they found the body in the Dumpster." Harry looks at me. We are thinking the same thing, that this leaves a lot of room for creative investigation. Without a clear statement by these witnesses, they are open to suggestion, the subtle, and not so subtle, shading of recollections. If the witnesses have criminal records they may be subject to pressure by the cops to embellish their testimony, to suggestions of things they did not actually see, such as the car that dropped the body or the person who was driving it.
"We need a specific motion, filed tomorrow morning," I tell Harry. "demanding all written statements from their witnesses and specifically the three named individuals. You know they would have taken statements, " I tell him.
"They probably have the witnesses on tap." Harry means in jail. "You guys are cynical," says Lenore.
"What? This from lady just us'?" says Harry. "You wanna bet they don't have em on ice? Some trumped-up charge? Vagrancy. Or maybe some interstate federal wrap, like defecating in a trash bin. The cops know if they let em go, they'll take the next coal car to Poughkeep she."
"Find out," I say, "if they have them. If so, I want an interview so we can take our own statement." Harry makes a note.
"While we're at it, get the transcripts of all computer transmissions from the patrol cars that night and any copies of radio transmissions.
Also subpoena the victim's telephone records for the last ninety days. Let's see who she was talking to." The kids are getting restless, noisy footfalls on the stairs and a lot of giggling. We are about to lose all semblance of calm.
"Anything else in their notes or reports?" I ask.
"Just one item," he says. "The police are assuming that she knew her killer."
"How so?"
"No signs of forced entry," says Harry. "According to their reports she must have unlocked the door for him. The cops had to find the landlord to get in." I give him a dense look, just as Sarah reaches me, hugs around the neck and wet kisses. My dining table is suddenly transformed into the center of merriment, like a Maypole in spring, three little dancing girls circling and singing.
Lenore grabs the hand of one other daughters and joins in a chorus:
Here we go round the mulberry bush, the mulberry bush, the mulberry bush I sit there with a dumb look on my face. Though I cannot see it, my expression at this moment must be one of a kid sucker-punched somewhere in the lower regions. I watch Lenore skipping around the table and wonder why, when we had gained such fortuitous entry, she would bother to lock Brittany Hall's apartment door on the night of our visit?
AFTER OUR WALK TO THE JAIL THIS MORNING I ASK Lenore about the lock on Hall's apartment door.
"I don't know," she says. "Maybe I locked it without thinking. An automatic reflex," she tells me. "I can't remember. Besides, what can we do about it now?" Lenore's conclusion is an obvious statement of fact. We can do nothing.
Still, I'm concerned. We have affected the state of the evidence in a capital case, causing the police to believe that the victim knew her killer, someone she would have admitted to the apartment past a locked door.
There is now a galaxy of other potential perpetrators, burglars, sex maniacs, strangers all, whom we have excluded from the mix of possibles.
We have, by our own conduct, intensified the focus on the man with a motive, our own client, Armando Acosta.
They say you take your client as you find him. Today we find Acosta, a seeming shadow of his former self, as he stares at us from beyond the thick glass of the client interview booth in the county jail.
Acosta's face is drawn, eyes that you could only call haunted, and yet still a hint of the former dominance that defined the man. Now instead of the twelve-hundred-dollar Armani, he wears an orange jail jumpsuit with its faded black lettering, the word prisoner stenciled on the back.
A guard stands outside the booth on his side.
"They have me on a twenty-four-hour suicide watch," he tells us.
This, the thought that others might think him capable of taking his own life, seems to depress him more than the fact that he is in this place.
Lenore tells him this is a usual precaution in such cases, where people of note have been arrested. It is one way to keep him from the general lockup with the other prisoners. There are probably a hundred inmates here who, if given the chance, would cut Acosta's throat and never look back, people he has sentenced from the bench in his former life.
She mentions that reports from the county shrink indicate that he is depressed.
"I cannot sleep at night," he says. "Not with someone watching me. I am tired. It is sleep deprivation," he says, "that's all."
"Given what's happened," she tells him, "it would be normal to be depressed."
"Don't patronize me. Counselor. Yes. I give you depression. But suicidal I am not." His voice through the tiny speaker embedded in the glass sounds as if it emanates from another planet.
She tells him she will look into the twenty-four-hour watch, but that in the meantime we have a lot to cover.
"What about bail?" he says. His own agenda.
A touchy point. Lenore is left to do the honors, as he will no doubt take this better from her than from me.
"Judge Bensen refused to hear the matter." With this, the look on his face is crestfallen.
"He insists that it be assigned through the usual process," she says.
Jack Bensen is the presiding judge of the municipal court, where Acosta's case now rests pending a preliminary hearing. According to our client, he is a good friend. Acosta was confident Bensen would entertain a motion for bail before assigning the prelim to one of the other judges.
"Did he say why?" says Acosta. He feels the appearance of impropriety would be too much," she tells him.
"Impropriety! What is improper about bail?" "It's a death case," I tell him.
"They have no evidence," he says.
"That's what we're here to talk about," I say.
"It's more the process." Lenore tries to soften it. "The judge felt that the public perception of going outside the usual process would be wrong. Besides," she says, "they're going to have to bring in a judge on assignment from another county to hear arguments on bail and do the prelim. They have all recused themselves."
"The entire municipal court bench?" he says. "I don't even know half of them." I can believe it. The judicial pecking order that prevails.
There are judges of the superior court who deem it beneath them even to greet in an elevator a member of the lower order. The lack of power or prestige might be contagious: the court's own caste system.
"All the judges, both municipal and superior," she tells him, "have disqualified themselves from presiding over your case." If there was the slightest spark of fervor for the fight left, this seems to extinguish it. That the possibility of recusal could have evaded him is a measure of the confusion that must surely rage in his mind since his second arrest.
"Judge Bensen says he was told that recusal was appropriate by the Judicial Council." This is the state court's administrative arm.
The look in Acosta's eyes says it before he utters the words: "The old boys club." The clan to which he was never admitted, the judicial establishment.
"I am the wrong color," he says. "Hispanic surname and an accent.
An easy target." The accent he has honed with diligence for over a decade. I have spoken with people who attended college with him who do not remember his having even the slightest hint of one, who never heard him speak a word of Spanish in four years. During his review for appointment, a period of ascendancy in affirmative action, he wore these symbols of cultural diversity, some would say with feigned pride. There were those who referred to Acosta as a "professional Mexican" behind his back. It should come as no surprise that he would retreat to this, ethnicity as a lifeboat in his current sea of troubles.
"Don't you think," he says, "that they are out to get me because of my race?" This is not just paranoia, but Acosta's hard view of a possible defense.
The brown ticket to freedom.
If there is an edict that should be carved in the criminal law, it is that truth does not always sell to a jury. Acosta may very well have felt the bumps of bigotry in life, but people holding positions of privilege have a hard time playing the ethnic card when things turn sour. I tell him this.
"It could be something else that caught up with you," says Lenore. "It's no mystery that you were not the poster boy for the cops," I tell him.
He runs a hand through thinning hair, then begins to agree with us. "Absolutely," he says. "You are right. I have spent many years protecting the rights of defendants. I have sought justice in my court. " Break out the red tights and blue cape.
"I have upheld the Constitution," he says. "They would have every reason to hate me."
"For a defense, it is a little broad," I tell him.
He looks at me with a studied expression. "You think that perhaps civil liberties is a bit like race," he tells me.
I nod. "As a possible defense it may provide some garnish, but it cannot be the centerpiece. You are not the only practitioner of libertarian views on the bench," I tell him. "A jury may have difficulty understanding why you were singled out for prosecution."
"But I was the only judge overseeing a grand jury probe of the Police Association." Bingo. Finally he goes where I have wanted to take him. "Everything else is decoration," I say.
He is a picture of considered opinion.
It is the funny thing about being in trouble. You are the last to see connections.
Acosta has already filled us in as to his claim that Hall set him up in the prostitution sting. According to him, she called to say she had information in the police corruption probe, evidence that she would share only with him. Whether we believe this or, more important, whether a jury will, only time will tell. But it has the threads of a possible defense.
If someone in the association were willing to frame Acosta on a misdemeanor in order to dampen his enthusiasm in the search for corruption, how much more likely would they be to shower him with incrimination when Hall turned up dead?
"We have some papers," says Lenore. "Items we need to review." She holds them up for the guard to see. He nods, an indication that someone will be there to retrieve them momentarily, to deliver them to Acosta's side of the partition.
"I will look at them," he says, "but it won't do much good. They've taken my reading glasses." Lenore shoots me a look.
"They probably thought I would cut my wrists with them." A bitter laugh.
"When did they take them?" she asks.
"Hmm." He thinks. "Two days ago. I can watch television. That is all." "You haven't by chance lost another pair recently?" This comes from Lenore.
"No. Not that I recall."
"How many pairs do you have?" I ask.