Briscoe tossed the lab report across his desk in irritation. “I can’t believe it! It took them eight hours longer than they said it would to find absolutely nothing, not even a smudged fingerprint. How the hell do you put milk in your own refrigerator without leaving fingerprints on it? Fisher obviously wiped it down. That alone suggests he was destroying evidence.”
Green picked up the paper and looked it over thoughtfully. “You know, every container of milk is stamped with a lot number so that it can be traced back to the dairy where it originated. We could use the ones on the bottle taken from Fisher’s apartment to trace where it came from, then where it was shipped and sold. If it was sold in a store where the Bradens shop and if we can prove that Fisher wasn’t in the store on the day it was sold, a jury could logically conclude that it was Corinna’s. I know it’s a long shot, but anything we can scrape together for the D.A. will help.”
“Why don’t we see if the Bradens still have other bottles with the same lot number, first?” Briscoe suggested.
“After so much time has passed? The milk would be long out of date by now. They would’ve tossed it days ago.”
“Maybe the Bradens are environmentally conscious people who recycle. It doesn’t have to be a full bottle. An empty will do.” Briscoe stood up and put on his jacket. “Besides, I want to tell them that we have someone in custody. Mr. Braden left a message yesterday asking how the investigation was going. I’d like him to know we haven’t just been sitting on our butts.”
Green nodded his agreement and stood as well. “I’ll let Lieu know where we’re headed.”
***Southerlyn stuck her head in McCoy’s office. “Fisher’s attorney didn’t waste any time making good on her promise. We have a motion hearing this afternoon at with Judge Ianello on the validity of the search warrant. Do you want me to reschedule the interview with Mrs. Costas? She was supposed to come in at .”
McCoy nodded, barely glancing up from his paperwork. “Reschedule for Monday, anytime after .”
“Skoda also called and wanted to know where we were meeting for lunch.”
“Call him back and tell him we’ll have to do it sometime next week. Something has come up that I need to take care of today and I can’t make it.”
“All right. Anything I need to do to prepare for this afternoon?”
down his pencil and leaned back in his chair, giving her his full attention.
“The main thing I want you to do is downplay the fact that the detectives asked
you to approach a specific judge if the subject comes up. Calea will slap us in
the face with Aguilar if it does and that could hurt us. What reason did
Briscoe give for sending you to
he and Green had worked with him before and that
With a smirk on his face, he nodded and sat forward, returning to his work. “Leave it to Lennie – a nice, simple story. Stick with that, if it comes up. With Ianello, I think we’ll be okay.”
***Briscoe entered the small restaurant and scanned the patrons. Spotting a familiar figure, he made his way across the room to a booth along the far wall.
“The only time you offer to buy me lunch is when you want to chew me out or ask a favor. Which is it gonna be this time?” he asked, only half-jokingly, as he slid into place.
McCoy took a sip of water and avoided the question by asking one of his own. “What did the lab say about the milk you found in Fisher’s apartment?”
With a sigh of frustration, Briscoe answered, “It didn’t have a single print on it, not even one of Fisher’s. He had to have wiped it clean. And even though it was opened, there was no DNA on the rim or in the milk itself. Whoever opened it didn’t drink any of it.”
“That’s just great,” he complained. “I’m sure I don’t have to tell you how much we needed to tie that milk to the victim.”
“Ed and I
visited the girl’s parents this morning to see if they still had any other
bottles with the same lot number. They didn’t and couldn’t remember exactly
where they had bought it, so we used the lot number to track down the store
where it was sold. It was located three blocks from the Braden’s home, miles from
Fisher’s apartment or work. The manager checked store records and said that
they sold all of the orange-flavored milks with matching lot numbers on the
same day. Mrs. Braden used her debit card so the store had a record of her
purchase. When we checked security cameras we saw her but, big surprise, Fisher
wasn’t on any of the tapes for that day. There were a few more bottles of milk
with the same lot number shipped to other stores, but all of them were sold on
the upper end of
McCoy regarded him silently for a moment. “You went to a lot of trouble for a case that’s basically in our laps now.”
Taking a menu from the waiter, Briscoe offered, “I wish we could’ve done more. I feel like we’re leaving you hanging. I know the case isn’t as airtight as you’d like.”
His piercing brown eyes scrutinized the detective. “I guess I’m just wondering why.”
Giving him a blank look, Briscoe asked, “Why, what?”
“Why you would go to so much trouble for a case that’s already off of your desk.”
Something in McCoy’s tone caught Briscoe’s attention and his eyes narrowed as he met his gaze. “You’re welcome,” he retorted sarcastically.
“I need to know, Lennie,” he said, using the same voice he reserved for those of his witnesses who needed more than the usual amount of persuading.
Briscoe heard the change in tone and was immediately suspicious. “So you’re gonna chew me out for doing my job too well?”
The mixture of sympathy and questioning that he saw in McCoy’s eyes made Briscoe suddenly uncomfortable.
“The lab sent the crime scene photos over to my office this morning.” Leaning toward him, McCoy continued, “It was impossible not to recognize the resemblance.”
The detective sat back, distancing himself from McCoy as much as the high-backed seat would allow. “I don’t know what you’re talking about.”
McCoy shook his head. “You and I have known each other far too long to play that game. I want to know if the fact that the victim looked enough like your daughter to have passed for her twin had anything to do with the choices you made while pursuing this case. Did you allow personal feelings to influence your actions with Fisher?”
Sitting forward, Briscoe stated emphatically, “When an innocent young girl is lured from a caring family, brutally raped and strangled to death, then dumped into the river like a piece of garbage on my beat, I take it personally. Don’t you?”
“That isn’t what I asked you, Detective. Diligently pursuing a case to its conclusion is one thing. Bending the rules to exact your own brand of personal punishment is another. Yesterday, you insisted that Serena approach one of the most lenient judges on the bench with your warrant request. And you didn’t even bother verifying your facts before presenting them as evidence for that warrant. You also didn’t bother waiting to find out for certain that the warrant was on its way before arresting Fisher. There’s also his initial claim of provocation for the resisting arrest charge, which he has since chosen not to pursue. I don’t think these are coincidences. And they aren’t tactics you normally employ. The last time I saw you get this fired up over a case was when Bobby Sabo confessed to you that he killed Eva Harrison for not giving up her purse, and then swore to everyone else that he did no such thing.”
“I did what I get paid to do on that case and this one – I caught the bastard who committed the crime!”
“You jumped the gun on the warrant,” McCoy argued. “You didn’t have enough evidence to support one. If the search is disallowed, Fisher will walk. We don’t have anything to hold him on. The only logical conclusion for such poor police work is that you allowed some misplaced personal vendetta to cause you to act in a rash manner. That isn’t what I expect from the cops I work with.”
“You’ve got a lot of nerve pointing the finger, Counselor,” Briscoe snapped. “Or do I need to remind you of how you almost put Bernard Dressler on death row for what amounted to a ‘C’ felony, all because you have a personal problem with drunk drivers?”
McCoy looked down and avoided his eyes for a moment, then admitted quietly, “I made a mistake that could’ve cost me my career. I don’t want to see the same happen to you.”
Briscoe was silent for a few seconds before shrugging nonchalantly. “I did what I did, Jack. The ball’s in your court now. It’s up to you to make the charges stick. If you can’t, Fisher is going to get the chance to kill another young girl. Whatever else you believe about this case, believe that Fisher committed the crime.”
With a sigh, McCoy acknowledged, “I know he did.” He took a sip of water and then added, “The only thing that may save us is that we pulled Judge Ianello for the motion hearing on the validity of the warrant. He’s pretty forgiving when it comes to cops and he very rarely overturns another judge’s ruling. Let’s hope he stays true to form.”
Briscoe’s face brightened considerably. “You see? I knew you’d find a way to make things work.”
“We’re not out of the woods yet. Even if Ianello rules in our favor, I doubt Calea will agree to plead Fisher out with the case as weak as it is. Since we don’t know what happened, we’re stuck with charging him with murder one. It’s going to take nothing short of a miracle to convince a jury to convict him for that with what we have now. What about his alibi? Have you made any effort to verify it? I don’t want that coming back to bite us on down the road.”
“He did punch in when he said he did, but given how close the store where he works is to the Hudson, that still would’ve given him plenty of time to dump the body and get to work by 5:30. The thing about strangulation is that it’s nice and neat – no mess to clean up so he wouldn’t even have had to change his shirt. Ed and I also drove by the Canal Street Post Office this morning. There wasn’t a vendor selling coffee within a two block radius. And you know how territorial cart vendors are and how loyal they are to their spots. I figure Fisher pulled something generic out of the air to send us on a wild goose chase and buy himself more time. His alibi is a crock.”
“I thought as much. Do me a favor; go back over his apartment with a fine-toothed comb. Find something, anything, to tie him to the girl. And keep looking for her backpack and clothes.”
With a nod, Briscoe suggested, “I know it’s a long shot, but I thought I’d ask the lieutenant to let us canvass the park and marina with pictures of both Fisher and the girl to see if anyone remembers either of them. The M.E. said that he raped and killed her very close to the water, so I’d also like to poke around the warehouses and piers north of Battery Park. Maybe something will turn up.”
As the waiter returned to take their order, McCoy noted, “If we want a fighting chance of putting Fisher away, we’d better hope something does – and soon.”
***When Southerlyn and McCoy entered the office marked “Judge Michael Ianello” they found Morgan already waiting. She looked up from where she was sitting, meeting McCoy’s eyes and studying him intently, as if trying to read his thoughts. Despite still feeling angry with her, he couldn’t help but notice how the suit she wore flattered her slim figure and how a wisp of hair had escaped its restraint to lie softly against the side of her cheek. But there was time for nothing more than a half-civil nod of acknowledgement before the receptionist announced their presence. As they were escorted into the judge’s inner chambers, he pushed all thoughts other than those concerning the task that faced him out of his mind.
They each took a seat in front of the large oak desk, with Morgan to the left and McCoy and Southerlyn on the right.
Once they were settled, Ianello indicated a file in front of him. “I skimmed through your motion, Ms. Morgan. Judge Livingston signed off on the warrant only yesterday. As far as I can see, Ms. Southerlyn presented adequate evidence on which to base her request for a search warrant and the issued warrant is facially valid. On what grounds, exactly, are you seeking to have the search declared illegal and your client’s computer excluded from the search?”
handed a piece of paper across his desk. “Your Honor, as you can see from this
affidavit from the
the judge could respond, McCoy quickly contended, “There was no ‘reckless
disregard’ on the detective's behalf. They relied on information gathered from
the most reliable of sources. Police records are scrupulously updated on a
regular basis. They had no reason to believe that the information they received
through the data bank was anything but correct. And they did in fact speak to
someone at the police station in
source?” Morgan asked disbelievingly, turning to give McCoy an irritated look.
“Police records are subject to the same errors as those of any other large,
cumbersome bureaucracy and are certainly no more reliable. And if a call was
made, pertinent facts were obviously omitted. Why the charges were dropped is
definitely a considering factor in using the arrest for other proceedings. Good
faith on the part of the detectives is not enough – Henry v.
“We’re not here to discuss the competency of the detectives involved, Ms. Morgan,” Ianello reminded her. “Whether or not their work was up to par is a matter of consideration for their commanding officer. What we are here to determine is whether or not they were reasonable in their assumption that the information on which they proceeded was correct. Let’s stick to the issue at hand.”
“Yes, Sir,” Morgan agreed. “But given the fact that the detectives proceeded with incomplete information, how can their assumption be considered reasonable? The exclusionary rule is meant to prevent just this sort of injustice.”
not taking into consideration the totality of the circumstances,” McCoy
interjected. “Given the exigency due to the killer’s preference for young
girls, and the alarming rash of child abductions lately, one could make a case
in favor of forgoing a warrant altogether in such a situation. The detectives
had the presence of mind not to do so, but under those circumstances, there are
bound to be occasions when they are forced to make a decision based on
information available to them at the time and then later find that information
to be incomplete. In People v.
according to Franks v.
McCoy turned slightly in his chair so that he was facing her. “People v. Rowland says that the issuing magistrate may draw reasonable inferences from the material provided in the warrant application. He had no cause to question the evidence presented. It was sufficient on its face.”
assuming the magistrate is performing a neutral and detached function and not
serving merely as what Aguilar v.
“What about that, Ms. Southerlyn?” Ianello asked. “Did the officers involved make a suggestion as to which magistrate you should approach for their warrant?”
Southerlyn could feel McCoy’s eyes boring into her even as she focused her attention on the judge. “They did make a suggestion, Your Honor, but it wasn’t due to any supposed leniency they hoped to take advantage of. Police officers frequently request a particular judge simply because they have a working relationship with said judge. Detectives Green and Briscoe had worked with Judge Livingston on two previous cases recently and both of those were assigned to him through the pool. There was no anticipation of favor involved.”
Morgan leaned forward in her chair. “The prior working relationship that Ms. Southerlyn referred to only serves to support my claim that the detectives are guilty of magistrate shopping, Judge. If I’m aware of his reputation, then having worked with him before, surely they are, too.”
“That’s a pretty serious accusation, Ms. Morgan, both against the detectives and Judge Livingston. Do you have any verifiable evidence to back up your suspicions?” he questioned.
“Only what’s in plain view regarding this case, Your Honor. My assumption is logical given the facts.”
“Well, unless you have something more tangible to back up your claim, it isn’t something I’m willing to consider during this proceeding. I’m not going to ruin anyone’s reputation on suppositions. If you come up with something solid on which to base your suspicion, I’ll consider it in a separate hearing. But you’d better have your ducks in a row, Counselor,” he admonished. “As for the reasonableness of the detective’s expectation of the reliability of their source, I tend to agree with Mr. McCoy. The police data bank should be considered a reliable source and they did make an effort to confirm their information. The police acted in good faith. I see no intentional or implied deception here.”
“With all due respect, Sir, are you saying that my client is to be punished because the source, even though admittedly wrong in this case, is usually right?” Morgan asked pointedly.
“What I’m saying is that even if the judge had known that the charges in the prior arrest were dropped and why, that arrest could have been considered in part as grounds to obtain the warrant given the similarity of circumstances.” Ianello took a pen from the holder in front of him and began writing. “I’m lifting the temporary injunction against the examination of the computer seized in the search. All evidence discovered in Mr. Fisher’s apartment is fair game.”
McCoy relaxed somewhat in his chair and breathed a silent sigh of relief. Out of the corner of his eye, he saw Morgan shake her head in equally silent protest.
“Your Honor, given your ruling, I would like to request that you at least prevent the district attorney’s office from using the previous arrest in any further proceedings against my client. Obtaining a warrant with questionable evidence is one thing. Presenting that questionable evidence for jury consideration is another,” Morgan maintained.
“A prosecutor can present any and all evidence to a grand jury, Judge,” McCoy reminded him. “People v. Calandra allows us to use all evidence, even if obtained illegally, in a grand jury proceeding.”
“But the rules of evidence prevent you from using prior bad acts in a trial by jury,” Morgan argued.
“She’s right, Mr. McCoy,” Ianello stated. “I’m going to save us all the time and effort of meeting back here to discuss this issue after Mr. Fisher has been arraigned. Since the charges were dropped, you can’t use the prior arrest to establish a pattern of behavior. You can use the information with a grand jury but you can’t use it should the case go to trial. Are we all clear on that?” When all three attorneys had nodded their agreement, Ianello asked, “Then are we done here, Ms. Morgan?”
“Yes, Sir,” she answered begrudgingly.
“Have a nice day,” Ianello said in the way of dismissal.
When the three had filed out of the offices and into the hallway, McCoy decided, against his better judgment, to rub his victory in slightly. As they all began walking in the same direction, he suggested cheerfully, “I thought you were going to contest the arrest itself on the grounds that the detectives kept your client out of his apartment illegally.”
“Given the judge’s willfully blind decision on the warrant, what would’ve been the point?” Morgan retorted angrily. “How many strings did you have to pull to get Ianello assigned to the case?”
The muscles in his jaw tightened and he stopped walking, turning to block her path slightly. “Just what are you accusing me of, Counselor?”
Morgan stopped and faced him. “First Livingston and now Ianello. It just seems a little coincidental that the two judges involved are both well known for furthering your side of the fight.”
“I don’t need to stack the deck,” McCoy contended indignantly. “I play the hand I’m dealt, win, lose, or draw. Ianello was assigned through the pool, the same as all of our cases.”
Morgan regarded him suspiciously as if deciding whether or not to believe his claim. She then shrugged and said, “You may have won the battle, but you have nothing with which to fight the war, Jack. You’re still going to lose this case.” Then, turning away, she headed for the stairs.
McCoy stood for a moment watching her, still seething with anger at her accusation. It took several seconds before he realized that Southerlyn was waiting silently beside him. With a final glance in the direction Morgan had gone, he continued with Southerlyn toward the elevators.
As they stepped into the elevator and began their descent, Southerlyn noted, “Why do I get the feeling that we just lucked out? Morgan’s arguments were persuasive and the cops’ evidence was suspect. If I had been a judge, I don’t know that I would’ve come to the same decision that Ianello did.”
He turned to briefly glare at her. “You shouldn’t look a gift a horse in the mouth, Serena. We need all the breaks we can get on this case.” When the doors parted, he asked, “When is Fisher scheduled for arraignment?”
“This afternoon at ,” she answered.
“I want you to have him removed from the docket. Reschedule for Monday, as late as possible. Since the 48 hour arraignment rule doesn’t technically include weekends and holidays, let’s use the time to our advantage. I’m going to give Van Buren a call and have the lab put a rush job on examining Fisher’s computer. My gut tells me there’s something on it he doesn’t want us to know about. Maybe by Monday morning we’ll know what that something is.”
***Morgan snapped the top closed on her water bottle as she walked on one of two paths etched into the grass. “I don’t get it. Ed and Lennie are usually better cops than that. In addition to shoddy police work, they’ve railroaded my client into a jail cell by blind-siding your replacement and a half-witted judge. Serena should’ve been suspicious when they requested a specific judge.”
that unusual for a cop to request a particular judge. I’m sure they had a valid
reason for asking Serena to approach
They wanted a warrant and knew they didn’t have enough evidence to support one.
You can’t tell me it’s just a coincidence that they sent a less than seasoned
A.D.A. to wait outside the door of a judge who practically hands them a blank
form and lets them fill out the warrant for themselves. And then I get stuck
with Ianello for the motion to have it invalidated. I looked up his record. He
rarely ever rules against the cops. So thanks to his and
“Remember Sara Grayson, the woman whose case I took last spring? The one I tried with you?”
Brenda Radcliffe was originally assigned to. How could I forget? I don’t lose
that many cases,”
“Yeah, well, let’s not go into your track record right now,” Morgan quipped, drying her forehead with her sleeve. “When I first heard about Sara’s case, I was pretty sure I could help her but she initially refused to meet with me. I had to convince Brenda to let me tag along with her and then we approached Sara together. In exchange for Brenda’s help, I promised to take the next case that came across her desk that she wanted to unload on someone.” Shaking her head, she added, “Yesterday was pay-back time. She paged me around and said I had a client waiting at the 27th. Given the circumstances, it’s definitely not a case I would’ve chosen to take. Defender of child rapists and murderers isn’t exactly a reputation I’m shooting for.”
“That explains why you cancelled our running date yesterday. But if the case is as weak as you say, why are you so upset?”
“I’ll give you just one guess as to who is responsible for my peachy mood,” Morgan answered crossly.
“As arrogant and egotistical as he always has been,” Morgan replied. “Aren’t you surprised?”
“Not really,” she agreed with a chuckle. “I should’ve guessed that he was the one who put a bur under your bonnet.” She frowned in contemplation. “Oh, wait; that didn’t sound right. Is it bur under your bonnet, or is it bee?”
“It’s bur under your saddle, bee in your bonnet, if you want to get technical about it,” Morgan answered sharply.
Morgan took another drink before replying, “Last night he had the nerve to ask me what I was doing taking the case. He acted like my representing Eric Fisher made me a criminal.”
your past, representing a man accused of raping and killing a young girl isn’t
exactly something one would expect from you,”
Morgan gave her an annoyed look. “I’m capable of kicking myself just fine, thank you. I don’t need you or Jack McCoy to play Jiminy Cricket for me.”
“I’m sure he was just surprised at your involvement. And sometimes he has a hard time trying cases with people he considers friends. I saw something similar happen when he tried a case with one of his former A.D.A.’s who went back to private practice. As long as she did what he deemed acceptable, everything was fine. But when it turned truly adversarial and she went to bat for her client, he had a difficult time separating his personal feelings from his professional obligations.”
Shaking her head, Morgan contended, “That’s not it. This is about his obsession to win no matter what. We both know how much he hates to lose. But attacking me because he can’t make the case against my client isn’t going to get him anywhere.”
“Look who’s talking. You hate to lose just as much as he does. Tell me, if you had won the motion hearing today, would you still be this angry with him?”
“Yes, I would,” Morgan insisted adamantly. “It isn’t just the motion hearing. He’s pulling out all the stops with this case. This afternoon he had my client removed from the arraignment docket. When I called to find out why, Serena said something had come up and she couldn’t make it to court, and that Fisher could expect to be arraigned on Monday afternoon. That means he has to sit in jail through the weekend. I don’t buy her ‘something came up’ excuse. This is Jack’s doing. He’s stalling, hoping they can come up with something else on my client before they take the case to the grand jury.”
“Technically, there’s nothing wrong with that,”
“Technically,” Morgan stressed. “But you and I both know that what he’s really doing is playing the system to his own advantage.”
Throwing her hands up, Morgan said in mock exasperation, “Why do I even bother? I’m talking to someone who enjoys walking the same fine line that he does!”
her arm around the other woman’s shoulders,
Morgan gave her a surprised look. “Good tamales?”
“I suppose I could allow myself to be persuaded,” Morgan slowly agreed with a smile.
headed toward the parking lot,
“I can’t in the morning. I have a charity thing to do.”
of mine has been bugging me to join him and some other professionals in a Habitat
for Humanity group,” Morgan explained. “Instead of simply donating money, we
actually get involved in the building work. I’ve gone several times now and
really enjoyed it. The work is very rewarding. Tomorrow we’re putting the
finishing touches on a duplex for two families that have been in a homeless
shelter for several months now. I get to paint walls.” Turning to
“In the morning? On a Saturday? I don’t know…”
“It’ll be fun,” Morgan insisted. “And there’s this very sweet, good-looking corporate attorney in our group that you should meet.”
With a shrug, Morgan replied, “Assuming I was interested in dating, he’d be a little young for me. And we both know that the last thing I need is a man to screw up my life. I do that just fine on my own. You, on the other hand, could use some help.”
***Even in the time it had taken for him to ride his motorcycle home in the stop-and-go traffic, McCoy still hadn’t shaken his anger. Upon entering his apartment, he checked his phone messages and mail while slumped in his favorite chair. But nothing could distract him from an overwhelming feeling of irritation.
assured himself the evening before that, although he was perfectly justified in
initially confronting Morgan, things would cool down and they would return to
their former, more affable relationship. But after her insinuations earlier
that day, he had found himself less inclined to make the effort to do so. She
had been the one to draw the battle line – he wasn’t about to change his
position. One of
After several minutes of staring into space, McCoy pushed himself up out of the chair abruptly. Grabbing a tote bag from the sofa, he reached in and pulled out a pair of dirty sweats. Tossing them onto the sofa, he made his way to the bedroom and stuffed a change of clean clothes into the bag, then headed out the door for the gym.