Chapter 11
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 The milk would be long out of date by now.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
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?”
He put
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 said
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?”
Morgan
handed a piece of paper across his desk. “Your Honor, as you can see from this
affidavit from the
Before
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
“Reliable
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.”
“You’re
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.
“And
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.”
“That’s
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
“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.”
“It isn’t
that unusual for a cop to request a particular judge. I’m sure they had a valid
reason for asking Serena to approach
“Yeah.
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?”
“The one
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
“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.
A bright
smile lit
“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.”
“Given
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!”
Putting
her arm around the other woman’s shoulders,
Morgan
gave her a surprised look. “Good tamales?”
With a
nod,
“I
suppose I could allow myself to be persuaded,” Morgan slowly agreed with a
smile.
As they
headed toward the parking lot,
“I can’t
in the morning. I have a charity thing to do.”
“Charity
thing?”
“A client
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.
He had
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.