Ben met Christina in the gallery.
“Did I miss anything?” Christina whispered.
“Nothing worth mentioning. Where have you been?”
“The police showed up this morning for a follow-up investigation of the break-in.”
“Did they find any indication of who tore the place up?”
“Not as of half an hour ago. I had to leave them to get here. Is that all right? Mike was with them.”
“If Mike was there, I’m sure it will be fine. Take a seat at defendant’s table.”
Christina walked briskly to the table, giving Ben a chance to inspect her more closely. She was wearing a thin V-necked dress with purple flowers. Her high-heeled sandals were laced up to her knees.
“Christina,” he whispered, “I specifically told you to dress normal!”
“What’s wrong with this?” she asked, astonished. “It has padded shoulders.”
“I know. You look like Herman Munster.”
“You told me to wear what I would wear to church. This is it.”
Ben sighed. If this case went to trial, he would have to choose her clothes himself.
“Can you still get the charges dismissed?” Christina asked.
“There’s a chance. As far as we know, all they’ve got is your presence in Lombardi’s penthouse when the FBI found the body. That might look good in the papers, but Magistrate Gould is going to require something more concrete.”
Ben heard a pronounced throat clearing from the bench. “Are we ready to proceed yet, counsel?”
“Yes, sir.”
“Very well. Let’s begin.” Gould rushed efficiently through the preliminary rigamarole. “Call your first witness.”
Moltke rose to his feet. “The United States calls James Abshire.”
Abshire was sworn in. He gave a bit of personal background information, then described his activities the night of the murder. He’d rushed into Lombardi’s suite expecting to find a drug deal in progress, but instead, he found Christina hovering over Lombardi’s body. He’d searched her, then cuffed her.
“Harmless,” Ben whispered to Christina. “Nothing in his testimony establishes sufficient cause to hold you over for trial.”
Moltke continued his direct examination. “Did Ms. McCall say anything as you arrested her?”
“Yes.” Abshire looked up at the magistrate. “She said, ‘I killed him.’ ”
There was an unmistakable reaction from the gallery, audible for all its silence.
Ben pressed close to Christina’s ear. “Is that true?”
“I’m not sure. I remember saying something, but it didn’t happen like that.”
“No more questions,” Moltke said, stepping down.
“Very well.” Gould turned toward Ben. “Any cross?”
Ben was trying to understand what Christina was whispering in his ear. “Just a moment, sir.”
“It’s now or never, counselor.”
“Then I guess it’s now.” Ben went to the podium. “Agent Abshire, did you see Ms. McCall fire the gun?”
“No.”
“Did you even see her holding the gun?”
“I’m not sure.”
“Agent Abshire, can you swear under oath that you saw Ms. McCall holding the gun?”
He frowned. “No.”
“You did not come into the apartment until after the crime was committed.”
“True.”
“When you searched Ms. McCall, did you find a gun on her person?”
“No.”
“Or any other weapon?”
“No.”
“Did you find any drugs or other illegal substances?”
“No.” He glanced at Moltke. “I didn’t.”
What was that supposed to mean? “And that self-serving hearsay statement you repeated, what was the context of the statement?”
“I’m…not sure I understand you.”
“Well, didn’t you first accuse Ms. McCall of killing Lombardi?”
He shifted his weight slightly. “I may have said something to that effect.”
“Did she seem to comprehend your question?”
“She sure as hell didn’t deny it.”
“Please answer my question.”
“She confessed right there in my face.”
“Isn’t it true she merely repeated your words?”
“Look, if she wasn’t guilty, all she had to do was say so.”
“Please answer the question.”
“But instead, she says ‘I killed him.’ Now if that isn’t a confession, I don’t know what is.”
“Magistrate, please instruct the witness to answer my question.”
“It’s your job to control the witness on cross-examination, counselor. But I will instruct the witness to listen carefully to the question and try to be more responsive.”
“I’m sorry, sir,” Abshire said contritely.
“I’m sure you are. Proceed.”
“Agent Abshire, would it be fair to say that your comment, whatever it was, provoked Ms. McCall’s statement?”
“Cards-on-the-table time? No, I didn’t make her say anything. Maybe her own guilt did—”
“Move to strike the last remark. Agent Abshire, she didn’t just start babbling out of the blue, did she?”
“I don’t exactly remember.”
“She was responding to what you said.”
“I suppose.”
“In other words”—Ben paused—“you had begun questioning her.”
Abshire drew back. He was beginning to see where they were headed. “I wouldn’t say that.”
“Had you read Ms. McCall her rights yet?”
“Well…” He licked his lips. “Not yet. We hadn’t had time.”
“You had time to initiate a conversation. One designed to elicit…what were your own words?…a confession. Sounds like a Miranda problem to me.”
Moltke rose to his feet. “Magistrate, I object. If we’re going to have legal argument, it should be addressed to the court, not a witness.”
“That will be overruled, Mr. Prosecutor. He’s entitled to explore the legalities surrounding this alleged confession, to determine the full extent of the taint created by this apparent Miranda violation. Unless,” he added significantly, “you wish to withdraw that testimony.”
Ben watched the magistrate stare down Moltke. The choice he was offering was clear. Withdraw the testimony, or risk a ruling that a custodial interrogation took place prior to reading Christina her rights, a violation that could conceivably make all their evidence to date inadmissible. No choice at all, really. Moltke would have to confer with Abshire later to determine the gravity of the problem and plan a course of action for the trial. But he couldn’t run the risk now.
“We’ll withdraw the testimony, sir. For the purpose of this hearing only, of course.”
Why not? Having heard the testimony, the magistrate would remember it, withdrawn or not. He might not decide the case based upon it, but he couldn’t possibly put it out of his mind.
Round one was a draw.
There was nothing duller than forensic testimony. Autopsies, fabrics, fibers, blood types. All sure-fire yawn inducers. Gould had been tapping his pen for ten minutes, a certain sign that this testimony had gone too long.
The investigating officer droned on. “We then proceeded to examine the room for dactylograms.”
“I beg your pardon?” Moltke said.
“Fingerprints.”
“Ah. And you didn’t find the defendant’s fingerprints on Lombardi’s body, did you?”
“No, I did not.”
“And you didn’t find her fingerprints in the bloodstains?”
“No, I did not.”
“Well, I guess that looks pretty good for the defendant.”
Ben’s head jerked up. Cheap theatrics were almost certainly a prelude to something Moltke thought was important.
“It seems like I’m forgetting something,” Moltke said. He snapped his fingers. “Oh, yes. I know what it was. I wanted to ask you, Officer—did you find any fingerprints on the gun?”