Play Dead Part 23

"Absolutely. And you should get back here fast so we can figure out how to get him out of prison," I say.

"I'm on a two o'clock flight."

"Take care of that ear. And keep an eye on your nose and mouth; everything's connected."

"Wise-a.s.s," he snarls, and hangs up.

It doesn't pay to be concerned about people.

I hang up and call Sam Willis, who says that he had just been ready to call me. Sam presents more of the same; the further he digs into Stacy's background, the more obvious it is that her real history has been completely concealed.

"And this isn't run-of-the-mill stuff, Andy. "We're talking driver's license, voter registration card, pa.s.sport, social security number-all issued in fantasyland."

"Let me ask you this," I say. "You've been able to access all this stuff on the computer. Could somebody as good as you, or even better-"

"Better?" he interrupts. "Better?" "Better?"

"If such a thing were possible, could somebody as good or better have created all of this? Some citizen with a computer?"

He thinks about it for a few moments before answering. "No. Maybe some of it, but not all the stuff that I'm looking at. The effort involved would be unbelievable, and even then it wouldn't be this thorough. This has to be bigger than that."

This seems to be the prevailing view, and it's one I share. Another factor that also supports this conclusion is that as far as I can tell, Stacy Harriman never went around trumpeting her background. She was always pretty quiet about it, speaking in vague generalities. If she had gone to all the trouble of creating it, she would have held it out there more.

It's not until nine o'clock at night that Laurie calls to add her voice to the chorus. It's a sign of how exciting my life is that I'm already in bed, watching television.

Laurie has spoken to her friend at LAPD, though she gave him only generalities, not specifics. "He says it has to be WITSEC," she says.

She's talking about the government agency that handles witness security. Contrary to common perception, it is not run by the FBI but rather by the U.S. Marshals Service.

I tell her about my conversations with Kevin and Sam, which only reinforce her conclusion.

"Is your friend familiar with any cases in which they've been forced to provide information about one of the people they're protecting?" I ask.

"As far as I know, that never happens."

"You doubt my powers?"

"Never. But you might want to utilize Kevin's powers on this as well."

"Good idea." I had already planned to meet with Kevin tomorrow, and I'll leave him a message to that effect when I get off the phone with Laurie.

"Any word on Reggie?" she asks.

"No. Pete says every cop in the area has been notified, but no sign of him."

We commiserate about this for a few minutes, and then she asks, "What are you doing tonight?"

"I can't decide. I was thinking maybe a movie and then stopping for a drink, or there's a terrific new jazz club that just opened."

"You're in bed watching television," she says.

"How do you know that?" I ask.

"Because I know you better than you know you."

"You make me feel naked," I say, in mock protest.

"If I were there you would be."

Kevin is over at ten in the morning. He brings his own tissues, since occasionally in the past I've only had paper towels to give him when he needed to blow his nose. He blows his nose a lot.

Kevin also brings some case law research he did last night after getting my message. It relates to previous rulings that the courts have made concerning efforts to penetrate WITSEC; that is, to get them to reveal specific information about people in their program.

The agency has been notoriously loath to provide anything, which in most cases makes perfect sense. Their protection efforts depend on total secrecy; it is by definition a matter of life and death.

The crucial difference here is that the death has already occurred. There is obviously a logical problem in protecting someone who has already been murdered, and we need to use that as a wedge to find out what we need to know.

Kevin could find no specific case law directly on point. Just as it makes little sense to try to protect a dead witness, there has been little reason over the years for people to want to learn who those already dead witnesses might be.

We kick around our options, and though it's obvious that we must go to Judge Gordon, our key decision revolves around timing. The prosecution presumably knows nothing about this, and anytime we know something that they don't, it is a distinct advantage that is not lightly discarded. Once we go to the judge, then Hawpe will know what we know.

Which is not such a big deal, because we don't know a h.e.l.l of a lot.

Kevin and I come to the same conclusion: We need to go to Judge Gordon immediately. If we can get definitive information that Stacy Harriman was in the witness protection program, the impact on our case will be immeasurable. If such dangerous killers were after her that she had to start a new life to escape them, then reasonable doubt about Richard's guilt can't help but kick in.

We've had two days' worth of witnesses, but this case really starts tomorrow.

"YOUR H HONOR, STACY Harriman was not Stacy Harriman." Harriman was not Stacy Harriman."

That is how I start the meeting in Judge Gordon's chambers. Present are only the judge, Hawpe, a stenographer, and myself.

"What does that mean?" he asks. "Who was she?"

"That's what we need you to find out," I say, and then lay out chapter and verse of what we have learned about Stacy's faked background. I leave out the other areas of government intervention, like the phone tap and the FBI's taking over the highway shooting case. To me that stuff adds credibility to our argument but might take the case on an unnecessary tangent.

I conclude with "I have consulted an expert in the field, and the only reasonable explanation that I can come up with is that she has been in the WITSEC program."

"And you're asking me to subpoena the information from the U.S. marshals?"

I nod. "Yes, Your Honor. And to hold a hearing if they refuse to comply."

"Mr. Hawpe?"

"Your Honor, first I would like to a.s.sure you that this is the first I've heard of this, so my reaction is an initial one. But I do not believe that the court should become an arm of the defense, to be used to conduct what seems on its face to be a fis.h.i.+ng expedition."

I shake my head in disagreement. "If it is a fis.h.i.+ng expedition, all evidence to the contrary, then no harm is done, and only a little of the court's time is wasted. If, on the other hand, it is true that Stacy Harriman's life was being protected by the U.S. marshals, then that is of monumental importance to Richard Evans's defense and to the search for the truth."

Judge Gordon nods slightly and turns back to Hawpe. "And your objection is merely a desire to be protective of the court's time?"

Hawpe says, "That and the possible impact of unfounded speculation like this on the jury."

Judge Gordon makes his decision. "I'll contact the U.S. Marshals Service immediately and, if necessary, issue a subpoena."

He goes on to impose a gag order, prohibiting either side from mentioning this to the press. I have no problem with that now, but if we don't get the information, I'll press to have it lifted.

Judge Gordon delays the start of the trial for one hour so that he can attend to this. I'm very pleased with his reaction; he completely understands the importance of the issue.

When the trial resumes, Hawpe's first witness is Lou Mazzola, the night manager of the pier where Richard kept his boat. He was on duty the night that Stacy was murdered, and he testified that he saw Richard and Stacy on the boat as it was leaving.

Mazzola's sole purpose is to place Stacy on the boat, and I have no desire to refute it, because I know it to be true, and others will say the same thing. Nevertheless, it offends my defense attorney's sensibility to let him get away without my accomplis.h.i.+ng anything.

"Mr. Mazzola, were Mr. Evans and Ms. Harriman alone that night?"

"They had their dog with them." It's a fact that Hawpe conveniently forgot to bring out on direct.

"Was that unusual?"

"No, he was with them pretty much every time."

"What kind of dog was it?"

"A golden retriever. It's the one I saw on television last month."

I can't help but smile; Mazzola has just made an important point for our side, that Reggie turned up alive recently. I can only hope that he still is.

Hawpe doesn't want to object, because the statement has already been made, and because he doesn't want a fight over Reggie's ident.i.ty. The court has already made a ruling about that at the hearing.

"So you're certain the dog was with them that night?"

"Absolutely. I kept dog biscuits in my office, and I gave him one every time they were there, including that night."

"Did you notice anything unusual about their actions that night? For example, were they unfriendly to you, or fighting amongst themselves?"

I know from the transcript of the first trial what his answer will be, and he says that he does not remember anything unusual at all.

"Could you see where the boat was docked from your office?" I ask.

"No. It was pretty far away."

"So you weren't watching the boat before they got there?"

"No. I had no reason to."

"Could somebody have boarded the boat before them, and maybe hidden somewhere that they couldn't be seen?"

Hawpe objects, but I say it's a hypothetical, and Judge Gordon lets him answer.

"I guess so," says Mazzola.

That's good enough for me.

Hawpe calls two more witnesses, mainly for the purpose of placing Stacy on the boat, alone with Richard out at sea. In both cases, I'm able to demonstrate that they also saw Reggie and did not notice anything strange about Richard and Stacy's behavior. Also, none of them were on the boat, so they would have had no opportunity to tell if someone was hiding.

I think Hawpe has made a mistake in calling these additional witnesses. Stacy's presence that night is not in doubt, and the points I am making are damaging him, at least slightly.

After a break in the afternoon session, Judge Gordon suddenly adjourns court for the day and summons Hawpe and me into his chambers for another on the record session.

"The U.S. marshals have declined to provide any information about the woman we know as Stacy Harriman," he says. "They cited a long-standing principle of confidentiality and cautioned that we not read anything into their position concerning whether or not Ms. Harriman was in the program. According to them, their position would be the same whether or not she was in fact under their protection."

I'm not at all surprised to hear this. "Your Honor, we would request that you convene a hearing to consider an order to comply."

He nods. "I already have. Ten o'clock tomorrow morning."

WHENEVER SOMEBODY SAYS "U.S. marshal," I'm thinking Wyatt Earp or Tommy Lee Jones. "U.S. marshal," I'm thinking Wyatt Earp or Tommy Lee Jones.

I'm definitely not thinking Captain Alice Ma.s.sengale, the attorney within the agency who leads a contingent of four into court for our hearing. Captain Ma.s.sengale is all of five feet four and a hundred and ten pounds, one of the few lawyers I have ever gone up against whom I would be willing to arm wrestle to settle our dispute.

The physical structure of the hearing is a strange one. Kevin, Richard, and I occupy the defense table, Hawpe and his team are in their traditional place at the prosecution table, and a third table has been brought in for Captain Ma.s.sengale and her group.

Hawpe is in the middle between us, and he's uncomfortably in the legal middle here as well. When Judge Gordon pet.i.tions the U.S. Marshals Service for doc.u.ments, he is doing so on behalf of the State of New Jersey. Hawpe is an employee of that state and therefore bound to advocate its position. However, as the prosecuting attorney, he is opposed to Judge Gordon's, and my, request.

Suffice it to say, I don't think we'll be hearing much from Hawpe today.

Judge Gordon sets the parameters of the hearing and summarizes the situation to date. He then asks Ma.s.sengale to state the position of the U.S. Marshals Service.

"Thank you, Your Honor. For over two hundred years, the United States Marshals Service has served as the instruments of civil authority for all three branches of the U.S. government. It is easily the federal government's oldest and most versatile law enforcement agency."

She thus launches into a fifteen-minute speech, without notes, about the glories of the Marshals Service. It's a stirring rendition, and I'm sure I would be moved to tears if not for the fact that I doze off three or four times during it. I would object as to relevance, but I can use the snooze time.

She finally seems to be getting near the point by saying that the Marshals Service "provides for the security, health, and safety of government witnesses and their immediate dependents, whose lives are in danger as a result of their testimony against drug traffickers, terrorists, organized crime members, and other major criminals."

It's a false alarm, because she goes on talking about the tremendous importance of the program, the remarkable people that run it, and the extraordinary success it has had.

Finally she gets to the matter at hand. "Any breach in the secrecy of this program, no matter how small, can imperil the entire operation. It is for that reason that we must regretfully decline to comply with the court's request."

"Any doc.u.ments you would hand over would be under seal," says Judge Gordon.

"Even to confirm that such doc.u.ments exist-and I am not saying that they do-would be to breach confidentiality by revealing whether this particular subject was in the program."

"Mr. Carpenter?"

"Your Honor, no one is disputing the need for secrecy in this program. It is crucial that witnesses be protected. But it is considerably less crucial when the witness is already dead. For that reason, secrecy should in this case give way to the defendant's right to a fair trial."

Ma.s.sengale comes back at me. "A precedent would be established."