hasn't sued him for slander." Thorpe handed the judge, Slip, and me
copies of an affidavit signed by a Lee Block. I had to admit, I was
impressed by the work Dunn Simon had done in the hours that had passed
since the subpoenas were served. "As you can see," Thorpe explained,
"Mr. Gunderson was in Bend, Oregon, looking at a property all day on
the Sunday when Ms. Easterbrook disappeared. Mr. Minkins was in the
casino at Chinook Winds until four p.m. that day. We are working on
locating a videotape to substantiate that, and I'm confident we will
have it by the end of the day."
The plan was working. Without even getting a ruling on the subpoenas,
the attorney who refused to let me talk to Gunderson and Minkins
informally had just locked them into alibis for the time of Clarissa's
death. Go figure.
Having set up the facts he wanted to rely on, Thorpe launched into his
argument. He took the predictable route, borrowing many of the same
points made by Bow Tie on Friday.
I opened the folder on my lap to sneak a glance at the note that Slip
had passed me. The man's handwriting was as sloppy as his attire, but
I made it out: Disc = finances of OHSU pediatric wing.
I tried to pull my concentration back to Thorpe, who was using words
like ludicrous, preposterous, and farcical. If Dunn Simon was charging
by the word, he should have checked his thesaurus and added cockamamy
and wacky while he was at it.
Why had Clarissa kept the financial records from Townsends hospital
wing in her safe deposit box? Maybe they were his backup records and
she was keeping them for him, but would she really tell him about a
safe deposit box that contained a video of Caffrey and her at a motel?
If she wasn't holding them for Townsend, why was she holding them at
all? It didn't make any sense.
"Ms. Kincaid. Does your office have a position on this?"
"I'm sorry, your honor. On what?"
Slip looked at me like I'd lost my mind.
"Well, as I understand it," the judge said, "Mr. Thorpe's principal
argument is that the defense's argument is one big paranoid delusion
and that, in any event, Mr. Szlipkowsky has failed to draw any kind of
nexus between the folks at Gunderson and this supposed frame-up.
Correct me if I'm misstating it, Mr. Thorpe, but he's essentially
arguing that the starting point for the alleged conspiracy would have
to be knowledge of Mr. Jackson's animus toward Ms. Easterbrook. And
I haven't heard the defense articulate any reason to believe that the
Gunderson company would have that knowledge. It happened to have a
case decided by her, but so do hundreds of other companies doing
business in the city. Before I rule, I'd like to hear where you stand
on the motion."
Something about what she said was bothering me, but I needed to get the
plan back on track. "Obviously, this is a matter for the court's
discretion, your honor, but it strikes me that the issue we're looking
at is different from the one your honor ruled on last Friday. The
previous subpoena struck me as an attempt to introduce inflammatory
information about possible activities in the victim's personal life,
without ever tying those activities concretely to the victims murder or
to Mr. Szlip-kowsky's client.
"Here, in contrast, Mr. Szlipkowsky has provided specific information
that appears to raise questions that I would be inclined to pursue at
least in some form prior to trial. Let me be clear: I am still
confident of our case against Mr. Jackson. But what I don't want to
see is a situation where we'll be dealing with these same issues down
the road at trial in front of a jury who might be misled or confused.
Quite frankly, if the court were to grant Mr. Thorpe's motion, my
office might be inclined to serve grand jury subpoenas instead. In the
event that possibility affects the court's exercise of its discretion,
I thought I should be forthright about my intentions."
"Well, thank you, Ms. Kincaid, for your candor. It certainly wouldn't
make sense to have the witnesses leave, just to return tomorrow for a
grand jury session."
While I was getting brownie points for my honesty, Thorpe was working
his way into the doghouse.
"That doesn't make any sense at all, your honor. If you decide to
quash these subpoenas, you should quash any subpoenas that Ms. Kincaid
might order in the future."
Prescott, Slip, and I just looked at him. In addition to being rude,
Thorpe's statement was simply wrong. Courts live with the fiction that
grand juries are independent of the judicial and prosecutorial systems.
Convincing a judge to quash a subpoena to appear in court was one
thing; convincing her to mess with the grand jury was quite another.
While Prescott corrected Thorpe's misunderstanding, I thought more
about what was bothering me. Prescott was right. If Gunderson was
behind this setup, he had to have known about Jackson's letters.
My immediate attention, though, was on the subpoenas. Thorpe hadn't
thrown in the towel yet, and we were moving into part two of the plan,
the good part.
"With all due respect, your honor" lawyers should never say this, since
what they're essentially saying is I have no respect for you, your
honor "I don't see how the court's decision about this hearing should
be affected by something that the district attorney may or may not do
in a separate grand jury proceeding. And if we're going ahead and
playing that game, the reality is I can always instruct my clients to
invoke their Fifth Amendment rights either today or at a subsequent
grand jury hearing."
Oh, yeah. As I'd hoped, Thorpe had been the first to mention the Fifth
Amendment. It was time for my move.
"Actually, your honor, on that point: I don't want to get too far ahead
of ourselves here, but in the event Mr. Gunderson and Mr. Minkins are
ordered to testify either today or at a subsequent grand jury hearing
it strikes me that it may not be appropriate for the two of them to
share counsel." I looked down at a PPDS printout. "I see here that
Mr. Minkins is on probation for forging a check. His probation
officer might not be happy about a failure to cooperate with a murder
investigation or gambling, for that matter, since Mr. Thorpe has said
his client was in a casino just eight days ago. As a matter of fair
process, Mr. Minkins should at least have an attorney who is thinking
solely about Mr. Minkins's best interests."
They had good poker faces, but I could've sworn that Gunderson looked
afraid, and Minkins looked mad. And they both looked nervous.
Prescott must have seen it too, because she suddenly displayed a
decisiveness I'd never before witnessed in her. "I am not going to
quash the subpoenas. Although I granted a similar motion filed by a