Move to Strike (31 page)

“There’s a guy in Sacramento I work with now and then. He’s been busy busting inmates out of state prisons based on DNA evidence with Barry Scheck’s group, but he’s back in town now. He’s good. I’ll consult with him.”

“Great. Paul, you and Wish have to be sure that Rankin shows up for the hearing. He won’t want to be involved, but he’s been subpoenaed.”

“I served him yesterday and put the proof of service in the file,” Nina said in an aside to Sandy, who made a note.

“She served him all right,” Paul said.

“And Paul, we need the Nevada records of ownership of the property. Also, the registration of the claim.”

“Check. I’ll get on that tomorrow. I’m looking at plane parts this afternoon.”

“I’ll prepare Daria and Beth to testify,” Nina said. “And figure out how to make this thing work.”

“What date do you want to set the hearing for?” Sandy said.

“We have to give twenty-one days’ notice. Plus three days to pull the motion to strike together. So . . .” Sandy already had her calendar out.

“Earliest is July sixteenth,” she announced.

“July sixteenth it is.”

The door was open to the NTSB digs. Paul entered without knocking and found Chuck Davis inside, editing paperwork, a red pen slashing across a section as he read. The place was piled with files and papers. He tucked the pen into a ceramic cup, gave his notebook a flick to shut it, and offered Paul a chair. “We’ve concluded our field investigation,” he said. “The Go Team is heading back to Washington tomorrow.”

“Any change from your initial conclusions? You still thinking pilot error?”

“We’re thorough,” he said, not answering. He took his notebook and filed it carefully in a drawer of his desk. “Let me walk you through this process a little better than I did the first time we spoke. When a plane goes down, even if there’s a fatality, there is not automatically an investigation by the NTSB.”

“I didn’t know that.”

“Everything costs, and not all accidents are suspicious. Most causes are relatively straightforward. In this case, our investigation is being paid for by the plane manufacturer’s insurance company.”

“Not the government?”

“That’s right. But believe me, despite what you may infer from that,” here he beamed a light ray out of his black beady eyes toward Paul, “we are disinterested observers, not insurance company shills. We are looking for the truth, that’s all.”

“The insurance company has a stake, though.”

Davis smiled. “They don’t want to have to pay out on a faulty airplane, obviously, if the machine’s not faulty.”

“Obviously,” said Paul.

“And they are satisfied that there is evidence for a conclusion of pilot error in this case.”

“So you’re not going to try to put the plane back together?”

“No. The parts will be stored for now at the Reno airport.” Paul was catching Davis’s drift. Davis wasn’t necessarily equally satisfied.

Having hinted at his misgivings, Davis moved back to the investigation. “We have pretty thoroughly picked over the Beechcraft’s engines, hydraulic and avionic systems. We looked for something in the melt-down which was all that was left of the cockpit gauges. We reviewed the FAA radar images and interviewed the examiner who last tested Skip Bailey. The plane was a model 18, built in the sixties, but completely rebuilt. The engine was only a couple of years old. All the other parts had been completely refurbished or replaced within the past few years. And,” he said, forestalling a question he apparently saw Paul formulating, “the work that’s been done was done well. We checked that wreck down to the rivets.” He pulled out and opened a sandwich wrapped in waxed paper. “Will you pardon me? I missed my lunch.”

“So, you found nothing new.”

“I’ll take you through some of our thinking on this.” Davis seemed determined to parade the entire length and breadth of the investigation before releasing his captive audience back into the wild. He leaned back into his chair, as if settling in for a cozy fireside chat. Paul followed his lead, stretching his recuperating leg out on a second chair.

“Our exam of the engines and fuel-system components, what was left of them anyway”—he was nibbling at his sandwich—“indicated no preimpact failure.”

“This is what the final report will say?”

Davis said, “Over the next year all this information will be very carefully reviewed. I can only give you some preliminary information. Data from the last radar return recorded showed the airplane was holding steady at about six thousand feet—much too low in an area where eight-thousand–foot peaks are common. No distress calls or communications to ATC were received. We conclude that the pilot continued VFR flight into instrument meteorological conditions. His failure to maintain sufficient altitude and/or clearance from the mountainous terrain, which may or may not have been precipitated by one of the illusory events I described to you earlier, caused the crash.”

Paul tapped his foot restlessly. “What about what the witnesses said?”

“. . . and a possible engine stall, cause unknown.”

“So, the original mistakes Bailey supposedly made are compounded in your report. In spite of all his experience, you’ve decided he, one, had some kind of muddled reaction to wind, and two, didn’t pay close enough attention to atmospheric conditions,” Paul said. “I find it harder than you to ignore the engine crapping out on them.”

“We didn’t ignore the reported stall. When you gas up a plane, a good pilot checks the fuel for contamination. Sometimes it’s mixed with a little water.”

“It’s delivered that way?”

“Not normally, but it occurs. Now what happened up there, the stall you mentioned that was reported by witnesses, made us wonder if the fuel was compromised, because what you get when you have a certain amount of water in a tank is you get a sputter, and maybe, if you’re unlucky and there’s a quantity of water, you get a stall. The engine quits. You don’t want your plane to stall, so you check your fuel whenever you fuel up.”

“How much water would it take, say if you wanted to make sure the engine would stall?”

“You mean, if you were trying to cause the engine to fail?”

“Right.”

Davis scrutinized his face. “Do you have anything that suggests that’s the case here?”

“Not a thing.”

“Well, I’d say a cup would cause major problems for certain.”

“Did the pilot check his fuel?”

“His mechanic swore both he and the pilot checked it. Because we’re suspicious devils, we checked with two other customers that bought fuel from the same supplier that day. The fuel was good. There was no water.”

“What did you find in looking at the fuel tank?”

“You’ll recall there was a fire.”

“So there’s no evidence of water.”

“That’s right. But if, and I’m just giving you an if because you seem skeptical in the face of all the evidence we have compiled. If someone wanted that plane to go down, the suicidal pilot, his greedy wife, his childhood enemy, someone . . . if that evil person wanted the plane to stall and crash, water in the fuel tank would cause the symptoms noted by witnesses before that plane crashed.”

Paul tried not to let his surprise show on his face. So Davis had taken his doubts seriously and had looked for evidence to repudiate them. He wasn’t as hard-ass about his conclusions as Paul had originally thought. “Was there any fuel left in the tank?” Paul asked.

“The tank’s mangled and cracked open, plus it caught fire. Even if we had some fuel left, there’s not much point in doing chemical testing unless you suspect contamination.” He folded his arms. “As I said, our investigation indicates that the fuel was pure.”

“All right,” Paul said. “I can see the team has done a thorough job. I don’t have any problem with your work. But I came here to look at the plane parts, so I may as well finish my job, too.”

“I’ll drive you there.” Balling his sandwich paper up, he threw it toward a can and stood. They walked outside together into bright sun and quadraphonic traffic.

Half an hour later they were in Reno at the beginning of the rush-hour traffic. An old building adjacent to the Reno Air hangars leaned precariously to the right, but inside it was dry and scrupulously clean, down to its concrete floor. Skip Bailey’s pride and joy lay disemboweled in a thousand labeled, mutilated pieces on a table covered with pristine white paper on the far left of the room. Larger pieces, such as the charred wings, sat on paper on the floor in the center of the shed. They walked along, hands in pockets, until Paul got to the fuel tank, or what was left of it.

“You can see it’s in bad shape,” Davis remarked.

“What’s this?” Paul held up a twisted piece.

“The fuel screen.”

“That would be responsible for keeping out . . .”

“Bits and pieces of things that shouldn’t make it into the fuel line.”

“Huh,” said Paul, setting it carefully back in its place. “And this over here?” He motioned toward another piece.

Davis had much to say about this second object, which had some arcane purpose in steering, so he stayed engaged and happy while Paul palmed the fuel screen.

After a long look at all the pieces, and lectures as long-winded and forbidding as a few he had had to endure back at Northeastern, Paul was ready to leave. As they walked out, he noticed an object lying by itself near one of the seats, remarkably undamaged. “What’s this?” He could see what it was at a glance. He turned the object around. White, about the size and heft of a Ping-Pong ball, it appeared to be solid Styrofoam. Familiar. He had seen something like it recently . . .

Davis lifted an eyebrow, then a bell must have donged in his head. Things fell back into place on his face. “It’s nothing. We found it under the seat Christopher Sykes was sitting in.”

“Didn’t burn up in the fire?”

“The fire was concentrated elsewhere. That part stayed cool enough so this item survived.”

“What’s it for?”

“It serves no useful purpose in flying, that I can tell you.”

“So why did they have it on the plane?”

“A little game of catch?” Davis shrugged, clearly bugged. He didn’t like the stall, cause unknown, and he didn’t like Paul finding the one thing that didn’t fit into his reenactment. “The interior of the plane had been thoroughly cleaned preflight. The only other loose things clearly belonged to Christopher Sykes—his bag, cell phone, sunglasses, baseball cap. We never did figure out what the ball was doing there under his passenger seat. You find out, you give me a call.”

So, Davis rated among the truth seekers after all.

“Thanks,” Paul said. “I’ve seen enough.”

As he pulled back into the parking lot in Carson City, Davis turned to Paul. “When you actually see the pieces, you realize two people died,” he said. “When you see how it all turned out, you keep thinking you have to do something to prevent it from happening again. And then you go back to Washington and go back on rotation, and in a few weeks you get another midnight call. I’m not here to snow anybody. You and your experts find something we didn’t, I want you to call me immediately.” He gave Paul his card and shook his hand.

A pay phone back in Carson City took his calling card number. It suited his current financial purposes to go easy on running up charges on his cell phone. “Ginger? It’s Paul van Wagoner.”

“Hey, Paul. I just walked into the lab back here in Sac.”

“I’m sending you some items Air Express. Two items. One’s metal. It’s a filtering screen for an airplane fuel line. Do every chemical test known to woman on this sucker. I’m looking for contamination.”

“What kind of contamination?”

“No idea.”

“You have to give me a hint. A direction. Otherwise I have too many miles to go before I sleep.”

“I can’t help much . . . except maybe you should look for some evidence of water.”

“Water? You’ll be stopping by in five minutes then?”

“I know, I know. This filtering screen was in a plane crash during which the plane went up in flames. It’s totally thrashed.”

“So, hunt for evidence of water on a mangled-up, dry screen, check,” she said. “What other small miracles do you pray for?”

“I have a little ball. Make it speak and tell you its origins and purpose.” He remembered where he had seen several like it, in Dave LeBlanc’s living-room collection of junk. Maybe Christopher saw one at the hangar the day they took off and picked it up, as Davis had suggested, just because it was something to pick up and play with.

“Where’d you find it?”

“Under someone’s seat on the crashed plane. I want to know why. You’re the forensic expert. You find out, you give me a call.”

“I can’t do this instantly, Paul. You understand? You’re asking me to test for everything.”

“I know that. And you probably won’t find a thing,” Paul said.

“If anything is there, I will find it. Anything else?”

“One thing. Ginger—do you know what’s wrong with Nina?”

“Huh?”

“She’s been acting a little strange the last couple of days. As though she’s upset with me.”

“I can’t imagine why you’re asking me for advice about your love life. All I can say is, before the meeting started, we were in the little girl’s room and she was brushing her hair. She said something about you.”

“What?”

“She looked so sad and I asked her if she was thinking about her husband. And she said no, that she was thinking about you.”

“I see.”

“I have to go.”

He felt it like a blow. Paul thought, the kid told her. I never should have said a word to him. As he considered what that meant, snapshots of Nina assailed him: curling up in that bed of hers; propping bare feet on her desk; walking, face pink in the wind; swimming, her long hair spread like a lily pad around her.

It was over with her, every possibility, every potential future.

He felt relief, in a way.

Now all he could do was wait for her to speak.

CHAPTER 25

“THE COURT OF the County of El Dorado is now in session, the Honorable Judge Flaherty presiding,” Deputy Kimura, who was substituting for Flaherty’s usual bailiff, announced.

“State your appearances, Counsel,” Flaherty said. Lightly tanned over his usual ruddiness, he had an unceremonious, mellow summer air about him. Although he frequently began proceedings that way, his speedy mood changes were famous, taking him and everyone in court from zero to
Sturm und Drang
in sixty seconds, or so the D.A.’s joked. White-haired and rotund, he was a right jolly old elf on this warm July morning, an effect Nina suspected he cultivated.

“Henry McFarland, representing the People, Your Honor.” Henry looked like a cat that had swallowed something a whole lot bigger than a canary. What was he up to? He wasn’t known for his subtlety. It made her even more nervous.

Barbara Banning hadn’t come in with him. As cocounsel, she should be here.

Something was going on.

“Nina Reilly, representing the defendant, Nicole Zack, Your Honor.” Out in the echoing hallway, Tim, Daria, and Beth waited, potential witnesses Nina wanted to keep in the wings. Rankin hadn’t shown up yet, although Paul had promised they would bring him in. Sitting next to Nina at the counsel table, Nikki could not have dreamed up a more contrary courtroom demeanor. Her newly tinted flaming orange hair, gelled into careful tangles, broadcasted frenzied instability. Her jeans had torn-out knees, her tatty red sweater an elongated droop, and her face sagged into its habitual sulk.

Oh, well. At least she hadn’t painted her skin purple or tattooed her face or studded her tongue for the occasion. In spite of the shabby teenage chic and the stubby black fingernails thrumming the table in front of them both, Nina could feel the girl trembling. She was afraid, and the trembling she couldn’t control gave her away.

I can relate, Nina thought, but they couldn’t both sit there quaking like aspens in a spring wind in front of Henry, so she stilled herself all over except for what she couldn’t stop.

“Let’s start at the beginning. So you don’t like the way the prosecution’s blood expert testified at the prelim, is that right, Counsel?” Flaherty said to her. He didn’t seem to be taking the motion too seriously. He had read a thousand motions that were filed
pro forma
by defense lawyers in criminal cases, because they were expected. Only one in a hundred 995 hearings resulted in any change in the case. But you never could tell what Flaherty was really thinking, until he blew.

“I don’t like it at all, Judge. As you can see from the portions of the preliminary hearing transcript attached to my motion, the witness never did conclude that the defendant’s blood was found on the murder weapon. She danced around it a lot, but she never said it. Without that conclusion, Your Honor, there isn’t a scintilla of evidence . . .”

“Neither a mote nor an iota,” Flaherty said.

His facetiousness heated her blood. “This sixteen-year-old child has been committed without probable cause on a charge of murder of the first degree,” she said in a strong clear voice. “There is no first degree if she wasn’t in the process of committing a felony, Your Honor. And as matters stand there is no evidence that she ever took a step inside that house or attempted to do so.”

“Can’t one find probable cause she intended to commit a burglary from the mere fact that she was on the property at night, skulking around?” said Flaherty. He leaned to the side as his clerk whispered something to him.

Nina waited until he returned his full attention to her. “This isn’t the situation of a complete stranger going on to a property at night,” she said. “Dr. Sykes was her uncle. She had been on the property before, even swum in the pool before. You can’t conclude she went there to burglarize the property from that.”

“If I may, Your Honor.”

“Go ahead, Henry.”

Now in charge of the floor, Henry took his time, flipping through paperwork and clearing his throat before speaking. “The defendant’s mother testified that the girl was angry about some sort of fancied wrong she thought her uncle had done her. Without telling her mother where she was going, she sneaked out of the house, appropriated a kayak, and prowled onto the Sykes property from the back. These actions are hardly as innocent as Counsel would have you believe. Her prints are all over the glass doors . . .”

“Not on the door handles,” Nina interrupted. “So there’s no indication of intent . . .”

“Wait your turn, Counsel. Teenagers do like to sneak around,” Flaherty said. “I recall that in my own youth in the Paleozoic era”—he paused for appreciative chuckles from the news reporters and his own court staff—“I used to row over to a house where a girl I had a crush on lived. I’d sit in her bushes and look at the light on the second story and dream under the moon, then go home. It was only years later that I learned she lived in the next house over.” More chuckles.

Henry said, “And we have an eyewitness who saw the girl steal something from a box in the swimming pool. Louise Garibaldi.”

“But I’m making a motion, Your Honor. I move to strike all her testimony,” Nina answered, “on foundational grounds that she didn’t have the ability to perceive what the defendant was doing down there.”

“We’ll get to that. But let’s talk about this blood evidence,” Flaherty said. “Henry, you state in your responsive papers that you have placed the defendant inside the house, the proof being that the blood of the defendant was found on the murder weapon.”

“That’s right, Your Honor,” Henry said. “I spent an hour with Detective Ditmar on the stand at the preliminary hearing examining her methods, her qualifications, every step she took in coming to her conclusion.”

“And what conclusion was that?” Flaherty said, in his most benevolent tone, practically beaming.

“I beg your pardon?”

“Where, precisely, in this transcript of court proceedings which I have gone through several times, with no help from your paperwork, I might add, do you ask the witness whether she can state with any degree of certainty that the second set of blood markers on the murder weapon match the blood samples provided by the defendant?”

Henry began flailing at his papers. “It’s all over Detective Ditmar’s testimony, Your Honor. It’s implied by the cumulative total of the testimony. She testified that there was the reasonable probability, ‘a strong probability,’ of a match at page seventy-seven, lines twelve to twenty of the transcript.”

“So she did. But where did she say that probability is enough to conclude it was the defendant’s blood?”

“All we need is probable cause, Your Honor. And ‘strong probability’ translates easily into probable cause.”

“Why’s that? Because it’s more than a weak probability? Is it sort of like a preponderance of the evidence test we’re inventing here? We seem to have a whole lot of research provided by Ms. Reilly here, indicating that ‘strong probability’ constitutes an iffy match, Counsel. I do feel obligated to take judicial notice of this research as she requests. Apparently a ‘match’ is ordinarily along the lines of ninety-eight percent probability or higher. And upon looking back at the transcript carefully, I sense a definite reluctance on the part of your blood expert to derive any conclusion. That’s what
I
think is implied by the cumulative total of the testimony.”

“Your Honor, if the rare blood found on the sword belongs to someone other than Nicole Zack, we’re looking at a fifteen thousand to one coincidence,” Henry said with calm logic. “That was the testimony. Those are pretty long odds even at Tahoe. In fact, the vast majority of people in this world would not match that blood as closely as the defendant does. This scientific method is somewhat new and there’s the occasional error, but our blood expert has provided evidence that this girl’s blood was on the sword. Hard evidence that doesn’t go away. It may not be dispositive, but it’s certainly not speculative. And the standard of proof in a prelim is only probable cause to believe under
all
the circumstances that a burglary was intended. In addition to the blood evidence, she was seen taking something from that box, just steps from Dr. Sykes’s study. Her fingerprints are on the wall right next to the study. The court must also consider her sneaking around, the secrecy of the entry onto the property, the testimony her mother gave regarding her motives, and so on.”

“I see,” Flaherty said, not sounding like he did.

Nina saw what was coming and kept her mouth shut. “I think you made a little misstep here, Henry,” Flaherty went on. “You didn’t quite get that conclusion from Detective Ditmar, your expert, and it’s about all I had to go on in making the determination that the defendant broke into the home. Now this presents a bit of a problem in the Complaint you have filed, because the charge of first-degree murder doesn’t stand without probable cause to show a felony was committed.”

“I can get Detective Ditmar in here to give additional testimony on ten minutes’ notice, Your Honor,” Henry said. “This is a minor problem that we can fix with a little extra testimony.” He was recovering quickly, moving toward his Plan B, doing exactly what Nina had hoped he would do.

“But the evidence is already in,” she said. “This is a 995 hearing, based on the transcript only.”

“Oh, no,” Henry said quickly. “I have a right to produce additional evidence to correct a minor problem with the Information, Your Honor. Section 995b allows that. If counsel doesn’t know that, she hasn’t done her research.”

Nina nodded her head. “I bow to your superior knowledge,” she said.

Henry gave her a suspicious look.

“I think it’s worth another half hour,” Flaherty said, looking to his clerk, who nodded to indicate he had time for that.

“The defense may need a little time too,” Nina said. “For cross-examination. And so forth. Depending on the testimony.”

“Naturally,” Henry agreed stiffly, since he had no choice.

“All right,” Flaherty said, “if that’s what you want to do, Henry. We’ll adjourn until after lunch and pick it up then.”

Out in the hall, Daria came up to Nina. Sobriety had prevailed today in her choice of clothing, as though Beth or someone else had taken her to her closet and shown her what to do. She wore a skirt slinking only a few inches above the knee and delicate beige heels. “Mr. McFarland looked mad,” she said, her voice full of doubt. “Did it go well?”

“Fine so far.”

“So far.” The words slipped out of Daria’s mouth, took shape and hung like a toxic cloud over them. She clamped her hand over pale pink lips. “Sorry,” she said. “Of course you can do it. I’m just so worried.”

“Daria . . . Daria, will you do me a favor?” Nina said.

“What?”

“Look me in the eyes, right now, and swear to me that it wasn’t you who killed your brother-in-law. That you went there and he was already dead. Will you do that for me?”

“You think I would let my daughter go through this just to save myself? I swear it! I swear it!”

“She’s not trying to protect you? She didn’t see you do it? She’s not relying on my getting her a reduced sentence because she’s a juvenile?”

“I told you! No!”

Nina’s frown remained on her face.

Frantic, Daria said, “You think I’m an idiot. Flaky. Can’t keep a job. A hopeless no-talent dreamer and a lousy mother.”

Nina started to speak. Daria raised a hand. “Maybe I am all those things. But that doesn’t mean I don’t love Nikki. It doesn’t mean I would let her go to jail for me, for God’s sake. You can’t believe I would sink so low. Can you? It’s just that I was there, and Bill was dead, and that sweatshirt was hanging off the bush in the back. Who else could it be?”

Nina didn’t answer that. She gave Nikki, who had just come up to join them, an encouraging smile, saying, “Think you could keep the hair that color at least through the afternoon?”

One-thirty rolled around too soon, and as Nina took her place at the defense table, she had a new worry—Dennis Rankin still hadn’t shown up or called the court with an excuse in spite of being subpoenaed.

She needed Rankin! Should she ask for a continuance? Flaherty would be pissed when he realized she had lined up three new witnesses. He could easily refuse to hear them on grounds of general exasperation. She had to keep a very low profile if she was going to get the testimony in. She had to trust that Paul would find Rankin and bring him in somehow.

She watched Detective Ditmar approach the witness box.

The detective must not help Henry. And if Detective Ditmar tried, Nina was prepared, with the help of the preparation Ginger had given her, to take her out.

Paul made the mistake of letting Wish test drive his new Mustang, a decision he regretted instantly the first time they skidded through a wet intersection.

“This is so great,” Wish said, giving the wheel a brisk turn. Paul put up an arm to prevent banging his head on the window. “Real receptive steering, tight brakes,” Wish continued. “Man, if you weren’t selling me your van I think I’d be going into hock for one of these.”

They rolled along Upper Truckee Court toward Meyers. In addition to being a prospector, Dennis Rankin was a certified gemologist and Paul had obtained his home address easily. Although he apparently spent much of his time in the desert, he lived near the California agricultural inspection station in the townlet of Meyers, a few miles inland from Lake Tahoe on the road that led through Echo Pass.

“Right or left,” Wish said, as they approached an intersection.

“Er . . .” Paul said, one eye on the map, the other on the street signs. “Here we are. Take a right on Grizzly Mountain Court.”

They swerved into a ninety-degree turn. Wish pulled up smartly in front of the house and turned the keys. “They just keep making cars better and better . . .”

Paul got out. “You stay in front. If he comes out that door, grab him. But remember. He’s big, and he’s probably armed. I know he doesn’t want to testify, so he may fight. Don’t take any unnecessary risks with this guy. I’m serious.”

“How about if I shout and you grab him?”

Paul didn’t answer. He saw no sign of a car and no garage in front of the modest cottage that apparently housed Dennis Rankin. After opening a creaking wood gate very slowly to make sure a Doberman didn’t make a silent rush for him, he went around the side of the house and tried the kitchen door. It opened easily. Up here, people didn’t worry so much about strangers coming around and trying their doors, which worked for Paul.