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Jack showed her the records. “You forgot abouttwelvecalls?”
“Maybe I blocked them out of my mind. Like PTSD or something. This was traumatic. He was stalking me.”
Jack checked the records again. Subpoenaed phone records included not just the list of calls, but also the duration.
“This call was for eleven minutes,” said Jack, pointing to the entry. “Who talks to a stalker for eleven minutes?”
“All rise!” called the bailiff, cutting their conversation short.
Shaky and his lawyer emerged from the jury room and hurried back to the defense table. Jack and Imani followed, but without words Jack made it clear that he was not going to let his question go unanswered. Judge Cookson ascended to the bench, settled into his leather chair, and looked across the courtroom.
“Ms. Ellis, do you have a response to my question?”
The courtroom was silent. An announcement from Shaky that he fully intended to implicate his wife in the murder would have been headline news. As Shaky’s lawyer rose, Jack felt the same rush of adrenaline he felt when a jury foreperson rose to render a verdict.
“Our answer is the same as Mr. Swyteck’s,” said Ellis. “It is not our present intention to do so, but it may turn out that Mr. Nichols will pursue an antagonistic defense.”
The answer came as a relief to Jack.
The judge was ready to rule. “If this were a capital murder case, I would be required to hold separate trials. But this is second-degree murder. At most, I’m hearing there is some possibility that the defendants may at some point in the future raise defenses that could be antagonistic. That’s not enough to justify the added burden on the judicial system, expense to taxpayers, and inconvenience to witnesses and jurors. The motion for separate trials is denied. Anything further?”
Jack was hesitant to make another request in the current climate, but he had to take his shot when it was available. “Your Honor, the defense has requested to take the deposition of Mr. Gustavo Cruz, the homicide detective who led the investigation into Mr. McCormick’s death. He is now retired, and the State Attorney’s Office has taken the position that only the current cold-case detective will be made available for deposition.”
“Mr. Owens, what is your objection to the deposition of Mr. Cruz?”
Owens looked more confident than Jack had ever seen him, clearly feeling momentum. “Delay, delay, delay. First, they want two trials. Now they want to depose two detectives. And once they’ve caused enough delay, they’ll come running into court screaming that their rights to a speedy trial have been violated.”
The judge smiled thinly, as if the prosecutor had taken the words right out of his mouth. “The request to depose retired Detective Cruz is denied. We are adjourned.”
The crack of the gavel and the bailiff’s command brought all to their feet. The silence lasted only as long as it took Judge Cookson to enter his chambers, and then the courtroom sprang into action, starting with a wave of reporters rushing to the rail.
Jack needed a clear and immediate understanding of the “joint defense” arrangement with Shaky and his lawyer. With the bailiff’s permission, the defense lawyers and their clients retreated to the jury room to talk behind closed doors.
“Looks like we’re stuck with each other,” said Imani. She and Jack were seated on one side of the table, and Shaky was with his lawyer on the other.
“I’m no happier about it than you are,” said Shaky.
Jack took control. “Let’s talk about how we can make this work,” he said, and then he laid out the basic rules of joint defense, most importantly that communications among the four of them were just as privileged as attorney-client communications. When Jack was finished, Shaky’s lawyer offered her take.
“That’s all very nice, Jack. But let’s be real. Some joint defense relationships work because there is some level of trust. Not this one. This joint defense will work much in the same way the United States and the Soviet Union survived the Cold War. The threat of mutually assured destruction keeps both sides in line.”
“I take your point,” said Jack.
“Can I say something?” asked Imani.
“It depends,” said Jack. “If it has to do with strategy or procedures, yes. If it has to do with the actual guilt or innocence of anyone in this room, you and I need to discuss it in private first.”
“It has to do with what I see as a deal breaker in this whole arrangement. Jack, you seem to have doubts as to whether Tyler McCormick was stalking me. Shaky knows that’s the truth. If he can’t back me up on that, we have no business being in the same room together.”
“Let’s discuss this in my office, just the two of us,” said Jack.
“No, we’re going to discuss it now. The phone records show that Tyler McCormick made a bunch of phone calls to me. I should have told you about those calls. But I didn’t. Not because I was hiding my guilt, but because I didn’t want to dredge all that up again. He was stalking me, and for twelve years, I put that part of my life behind me.”
“Imani, the two of us need to talk first.”
“No, Jack. It’s fine if the four of us don’t trust each other, but you and I sure as hell better. You said the phone records show there were more than a dozen calls. Did it ever occur to you that most of those were voicemail messages that I deleted without even listening to them? You said one of the calls went on for eleven minutes. Yeah. I made the mistake of trying to reason with him and tried to convince him to stop what he was doing. I should never have done that. It only made it worse.”
She paused and looked straight across the room at her ex-husband.“So, I need to hear it from you, Shaky. I know your first instinct is to tell everyone I lie about everything. But am I lying about this?”
