battle, but he wants at least to have that chance. As your honor well
knows, the grand jury process is even more lopsided."
The prosecutor runs the show with the grand jury. No judge, no defense
counsel, no defendant.
"Your honor," I said, "I already have this case scheduled for grand
jury. He has no right to a preliminary hearing."
"But he's not indicted yet, is he? And now he's asking for a
prelim."
I tried to explain that wasn't how it worked, but Levinson wanted to
keep his docket moving.
"I don't see the harm, Ms. Kincaid, and I don't want to leave all
these people waiting here while the two of you argue about it. Friday,
JC-Three, at nine o'clock. I assume you can make it, Ms. Kincaid?"
"Of course," I said, since that was the only acceptable answer to a
question that had used you in the collective sense. Judges assume
prosecutors are fungible. If I had open-heart surgery scheduled for
that morning, I'd have to find someone else. Fortunately, I did not.
Neither did Slip. "I can clear my calendar, your honor."
"Very good. As for bail, nice try, Mr. Szlipkowsky, but, unh-unh, I
don't think so. Remanded."
I told myself there was nothing to worry about. Beating charges at a
prelim is unheard of.
I passed Russ on the way back to my office. I was beginning to think
the man lived in the hallway.
He looked at his watch when he saw me. "You spent an hour and a half
over there to do one arraignment. I need to find you some more work,
Kincaid."
I told him about Jackson's request for a prelim and the Friday hearing
date.
"You've got to be fucking kidding me. We don't do prelims."
"Try telling that to Levinson while he's behind on his docket."
"Well, we can't be ready to put on evidence by Friday morning. Did you
ask for more time?"
"No."
He looked frustrated.
"It would've been pointless, Russ, and it's just a prelim. Weapon,
threats, paint, statements. Done. It'll take two hours."
"Let's see," he said, ticking my points off on his fingers. "Hammer:
no blood tests yet; threat: every judge gets them, including whoever
you draw for the prelim on Friday; paint: you need an expert or else
Jackson's just a laborer with a can of beige paint; and statements: you
better hope they come in. I know your guys were out there just for the
warrant, but a lot of judges will say Jackson was under arrest the
minute the cuffs came out."
Jackson hadn't yet been Mirandized when he admitted knowing that the
police were there about the paint. His statements would be admissible
only if the court believed that the police had handcuffed Jackson to
restrain him temporarily during the search rather than to arrest him.
"You worry too much," I said. "The threats are motive, and I'll line
up a paint expert. That's enough for probable cause right there, and I
guarantee you the crime lab will find a blood match on the hammer. The
only problem is I'm supposed to have discovery to Slip by the end of
the day. There's some evidence suggesting the victim was having an
affair, and I think we need to turn it over."
I had been hoping to have more time to mull over Tara's revelation, but
Jackson's request for the quick prelim forced the issue. The failure
to turn over exculpatory information could lead to a reversal down the
road.
"Christ." Frist rubbed his temples. "Exactly what kind of evidence
are we talking about?"
I told him about Tara's visit. It was more than mere rumors; according
to her sister, Clarissa admitted she was contemplating divorce because
she was in love with someone else.
"You don't know who the someone else was?" he asked.
"Not with any certainty, but we've got a theory." I told him about the
calls to T. J. Caffrey.
He started shaking his head before I had even finished. "I'm not sure
I'd tell the defense about any of that. Even if she was having an
affair, there's nothing concrete tying it to the murder, and you don't
know for certain who the guy was. A few phone calls don't mean
anything."
I understood his argument. The rules on disclosure allow the
prosecution to hold back just about anything that's arguably innocuous.
But with the growing numbers of innocent men being freed from prison in
cases where the prosecutor sat on information, I tend to fall on the
side of broader disclosure.
I explained my analysis to Frist. There was both physical and
testimonial evidence suggesting that the victim may have been having an
affair, and the phone records showed that the calls between Clarissa
and Caffrey made up the bulk of her cell phone usage. I wouldn't turn
Caffrey's name over to Slip directly, but I'd give him the phone
records and a report about Tara s statement so he could decide for
himself if they were relevant.
"Suit yourself," Frist said, "but if this case goes to trial, and he
tries to turn your victim's supposed boyfriend into his one-armed man,
you'll regret it."
"You're dating yourself. Satanic cults are the 'other guys' of
late."
"You're pushing your luck, Kincaid, but I'll go along with you anyway.
Duncan's going to want to call Caffrey as a courtesy," he said
resignedly. "I'll tell Duncan; you take care of the husband. We don't
want him learning about this at the prelim."
Great. Getting information to Townsend meant a phone call to Roger. In
the hierarchy of pleasantries, I ranked it just beneath walking a plank
of nails into a shark tank.
"And, speaking of the prelim," I said, "tell me I can do it without
you."
"I'm afraid I've got no choice, Kincaid."
I started in on my spiel about how wasteful it was to use two attorneys
on a prelim, but he interrupted. "No. I meant I don't have any choice
but to let you go solo. I've got thirteen victims coming in on a
sex-abuse grand jury. Some chick who ran a home day care didn't notice
her boyfriend diddling all the kids."
I never wanted to get used to these cases.
"I'll do it by myself, then. Don't worry. It will be fine." I
started to walk away, then realized I'd forgotten something.
"Oh, can you do a death penalty meeting tomorrow at two? Duncan told
me to get everyone together."
"Yeah, I'm clear. And, for the record, Sam, I would have let you
handle the prelim anyway. You're doing a good job."
An unqualified compliment at the District Attorney's Office? For me?
Either Frist was a different kind of supervisor or I was becoming a