Until Judgment Day (7 page)

T
HE
C
OUNTY
B
UILDING'S
cement stairwell rose from the basement to the roof and reeked of paint, disinfectant, and mildew, so Mackay stopped in the hallway outside the Sheriff's conference room to speak with Escalante.

“I'll have my secretary round up as many grand jurors as possible, and I'll call the foreperson personally, to explain the emergency session. Tell the Court Administrator we need a courtroom all day tomorrow.”

“Anything else?” Escalante asked.

“Yeah, have the subpoenas ready for service when I get back to the office,” Mackay told her.

They headed down quickly, heels clacking on the stainless steel stairs.

“Kate!” Granz' shout echoed back and forth between the bare cement walls. “Kathryn, wait.”

Mackay and Escalante stopped on the landing while Granz charged down.

“Glad I caught you. Can we talk a minute?” he panted.

Escalante turned to leave.

“Stay please, Inspector.”

Granz' face flushed. “I was rude to you both at the briefing. I don't know why I've been so irritable lately, but I was out of line.”

“I didn't notice,” Mackay lied.

“I'm sorry,” he answered.

“No need to apologize to me, Sheriff,” Escalante told him.

“Everyone but you calls me Dave.”

“Yes, sir.”

“See you later.” Granz sprinted back up the stairs two at a time.

Mackay watched until he was gone, then turned to her Inspector, frowning.

“If I'm off base, Ms. Mackay, tell me,” Escalante said. “Are you okay?”

“I'm fine.”

“You don't look fine.”

Mackay hesitated. “I'm seeing my gynecologist at eleven o'clock,” she finally said.

“If you'd like to talk, I'm a good listener, and you can trust me to honor a confidence.”

Mackay laid her hand on Escalante's forearm momentarily, in an unusual gesture of friendship.

“Thank you, Donna, I might need to take you up on that.”

She turned away. “If I don't get moving, I'll be late for the appointment—and my gynecologist can be even grouchier than my husband.”

 

Mackay crossed her right leg over her left knee, bounced her foot furiously, and stared across her doctor's desk. “Well?”

“You're pregnant, Kathryn.”

“I know, I've missed two periods. I must have conceived in mid-October.”

“Congratulations.”

Doctor Diedre Burton leafed through Mackay's medical file and read a page. “Your blood is RH-negative. I'll arrange for your prenatal blood test, and a blood test for your husband, to see if he's positive.”

“How long can we wait before his test becomes critical?”

“Even if he and the fetus are RH-positive, which they probably are, we've got until the twenty-eighth week before we start RhoGam injections—assuming you didn't form RH antibodies during a previous pregnancy.”

“Is that the only way antibodies could form?”

“It's possible to form antibodies as the result of an abortion or miscarriage,” Burton said, then asked, “You've either aborted or miscarried?”

Kathryn nodded. “I miscarried once, in college. What if antibodies are present?”

“I'll monitor you closely and if antibody levels get too high, take special measures.”

“Like what?”

“Blood transfusions to the baby or early delivery.”

“What happens otherwise?”

“Your antibodies can pass through the placenta and attack the baby's red blood cells, causing severe complications—anything from jaundice to stillbirth.”

“Emma's my only child. Her father was RH-negative, and so is she. Couldn't this baby be negative too?”

“Depends.”

“On what?”

“If your husband's RH-positive, so is the fetus.”

“What are the chances my husband is negative?”

“Not good, but statistically better than Asians—or us blacks, who are ninety-five percent positive—eight out of ten Caucasians test positive.”

“So, it's possible the fetus is RH-negative, and there's nothing to worry about.”

“It's possible, but there's no way to know without testing your husband's blood. Send him in for a blood draw this afternoon.”

“I can't.”

Burton leaned forward, elbows on the desk, deep brown eyes boring in on her patient. “Why not?”

“I haven't told him yet that I think I'm pregnant.”

“Are you saying you might want to discuss abortion?”

“Not unless my baby has
no
chance of being born healthy.” Mackay dropped her eyes. “Even then, I'm not sure I could abort.”

“Your baby has an excellent chance of being healthy, but only if we know what problems we face as early as possible. So, trust your husband—tell him about the miscarriage and the RH factor as soon as you get back to your office. Then send him in today for a blood draw.”

S
EVERAL YEARS BEFORE,
the County Board of Supervisors had appointed Kathryn Mackay to fill the remaining term of DA Harold Benton, himself a murder victim, poisoned by County Health Officer Doctor Robert Simmons.

Mackay immediately tossed out the office's hand-me-down furniture and spent her own money to buy beige wool carpeting, a modern executive desk, a plush off-white leather sofa with matching end tables, love seat and interview chairs, then hung a few pieces of original artwork she had acquired over the years from a small art gallery in Zihuatanejo, Guerrero, Mexico.

County employees had gone home for the day when Escalante dropped into a chair and slid the unserved subpoenas across the desk to her boss. “Their lawyer was waiting when I got to the Diocese. I didn't push when he refused service because he told me the Diocese filed a motion to quash.”

“You did the right thing.”

“Where does that leave the investigation?”

“Judge Woods set the hearing for nine o'clock tomorrow morning.”

“Woods handles juvie,” Escalante pointed out unnecessarily.

“Juvenile Court's dark on Fridays. He's the only judge whose calendar was clear.”

“Maybe we got lucky, he's an ex-prosecutor.”

“Luck shouldn't have anything to do with it. I rescheduled the Grand Jury session to one o'clock, in hopes he'll rule in our favor, so we can get on with it.”

“You think he will?”

Mackay's shoulders lifted momentarily. “Let's hope so.”

F
RIDAY
, D
ECEMBER
27, 9:00
A.M.
S
ANTA
R
ITA
S
UPERIOR
C
OURT

The calendar posted outside the door read:

S
UPERIOR
C
OURT OF THE
S
TATE OF
C
ALIFORNIA
C
OUNTY OF
S
ANTA
R
ITA
D
EPARTMENT
12

In his sixties, His Honor Jesse Augustus Woods remained trim and fit with a full beard that matched a mop of wiry white hair. During testimony he often turned aside and gazed into space or closed his intense green eyes to concentrate, but missed nothing.

“In the Superior Court of the State of California, in and for the County of Santa Rita, case number 120211,” Court Clerk Cathy Radina announced, “the Diocese of Monterey versus the State of California.”

Woods surveyed the almost-empty room. “The record shall reflect that District Attorney Kathryn Mackay is present on behalf of the People, and representing the Monterey Diocese, Gerald Scalisi.”

Wearing a rough-textured wool suit and a narrow 1950s tie, with a pouty-thick lower lip and black-plastic horn-rimmed glasses, Scalisi could have passed for an old, wrinkled reincarnation of Buddy Holly.

Woods acknowledged each attorney with a slight nod of his woolly head. “The Diocese has brought a 649 motion to dismiss subpoenas issued by the District Attorney seeking to produce certain Diocese personnel records and compel the testimony of a church official before the Santa Rita County Grand Jury.”

He turned to the defense table. “It's your motion, Mr. Scalisi. What say you?”

When Scalisi stood, Mackay expected the Crickets to rush in with their guitars to join Scalisi in a few high-pitched bars of “Peggy Sue.”

Instead, he addressed the Court in a deep, melodious tenor that Pavarotti would've envied.

“The Monterey Diocese thanks Your Honor for hearing its motion on such short notice, and shall not consume an excessive amount of the Court's time.

“The motion before the Court poses only one question: Must this Court fervently enforce—or may it frivolously and forever invalidate—the venerable First Amendment to the United States Constitution, by which our Founding Fathers guaranteed our right to worship without government intrusion, government oversight, or government insertion between a Church—any Church—and that Faith's Believers?”

Scalisi cleared his throat. “The future of the fundamental American right to a distinct, total, and inviolate
Separation of Church and State
shall be determined for the next two hundred years by Your Honor's answer to that deceptively simple question.”

Scalisi spoke extemporaneously, a gift Mackay admired but lacked, always presenting her courtroom arguments from meticulously prepared notes.

“The answer is obvious—the subpoenas must be quashed. Not only because the records and testimony the District Attorney seeks won't further her investigation, but because they pose a dangerous and unconstitutional invasion of Church affairs that are, and must remain, beyond the reach of government.

“I promised the Court I would not take up too much of its time and I shall not. However, I would like to assure the Court” he turned to Mackay—“and the honorable District Attorney”—he returned his attention to the Bench—“that the Church desires to neither obstruct justice nor thwart law enforcement's investigation into the deaths of two of its most revered clergy.

“The Diocese has engaged an independent investigator, whom I shall supervise, to conduct its own investigation into those deaths. As liaison between the Church, the Sheriff and District Attorney, I will make all relevant information immediately available.

“I offer this compromise in the hope the District Attorney will withdraw her subpoenas and preserve the sanctity and privacy of the Church and its parishioners, while still accomplishing her purpose.”

Scalisi sat down at the defense table and folded his hands.

“Ms. Mackay, are the People willing to cancel the subpoenas on the basis Mr. Scalisi proposed?” Woods asked.

“No.” Mackay stood. “The subpoenas seek not to violate the sanctity of the Church but, for limited investigative purposes, to identify what commonality exists between those two murdered priests. To that end, the subpoenas seek very specific documents, namely the personnel records of the two priests, and testimony from a single Church official to interpret the records on that narrowly defined issue.”

“It is unprecedented, Ms. Mackay,” Woods observed.

“Not entirely. In
Internal Revenue Service
vs
Church of Scientology of California
, the Court ruled that the IRS could subpoena and examine records of the Church for the limited purpose of ascertaining the Church's correct income tax liability. The Court ordered Scientology to produce books and records and provide testimony relevant to that purpose. The People contend these subpoenas are similarly specific and limited in purpose, and therefore ought to be enforced.”

Woods turned to the defense table. “What about that, Mr. Scalisi?”

“I admire Ms. Mackay's resourcefulness, but that obscure ruling isn't on point. It is a well-established principle that when a normally tax-exempt entity conducts unrelated business activities, the profits from that venture are taxable, and all related records must be produced if subpoenaed by the IRS.

“It isn't necessary for the Court to determine whether that same principle might, or should, apply to unrelated profit-oriented activities of a bona fide church,” he emphasized “bona fide” to impress on the Court the distinction between Church of Scientology and the American Catholic Church “and I contend it would not, because in the case before this Court, neither deceased priest was or ever had been engaged in any profit-oriented activity. The narrow exception previously carved out by the Scientology Court couldn't apply, nor does the State enjoy the power to delve into private activities of
legitimate
churches, whether those activities are profit-oriented or not.”

“I'm inclined to agree, Ms. Mackay,” Woods said. “I've only asked to see two sets of personnel records for the sole purpose of determining what, if any, common background these two priests might share, that could have set them up as targets for murder. Thompson and Benedetti have been employed by the Catholic Church all their adult lives. Without the records we seek, we have no chance of determining the reason—whatever it was—that they were targeted, or apprehending their murderer.”

“Mr. Scalisi?”

“Internal Church and Diocese matters are inextricably interwoven with those of its clergy—performance reviews, promotion evaluation, interparish transfers, job assignments. A look at their records is a look at the Church and is therefore unconstitutional.”

Woods pondered. “Ms. Mackay, assuming the Diocese agreed, could the records be purged in such a way that your purpose could be served while still meeting the legitimate concerns of the Diocese?”

“No. We can't be sure exactly what we're looking for and the connection might escape a well-meaning but untrained investigative eye. That wouldn't work.”

Scalisi stood. “It's a moot point, Judge. The Diocese would not agree to that approach.”

Woods removed his reading glasses, clasped his hands, and leaned forward.

“Courts must often decide between two conflicting, Constitutionally protected rights and, often-times, elevate one over the other, even when they are both equally defensible. In addition, public protection has always been a paramount, if controversial, consideration in deciding such issues. However, the grave consequences of my decision today—” Woods looked at both lawyers, “and my distaste for being overturned on appeal, convinces me to take this matter under submission. I realize that time is critical, and I won't delay unnecessarily. My clerk will notify you both when I'm prepared to render my decision.”

Both Mackay and Scalisi jumped up to object, but Woods cut them off with two big hands held out in a “stop” gesture.

“I've heard your arguments. That's my decision.”

Then Woods disappeared through the door behind the jury box.