Alfred Hitchcock Mystery Magazine 11/01/10 Read online

  Fiction

  Monday, November 1, 2010

  THREE STRIKES

  STEVEN GORE

  “I am gonna roll the dice,” Tank McBain told Evan Gordon inside the attorney’s visiting room in the San Francisco County Jail. “There aren’t any dice to roll.”...

  RECOMMENDED TO MERCY

  ERIC RUTTER

  “Private Knox, can you hear me?” Captain Patrick Ainsworth said. The man lying on the cot didn’t respond. Patrick watched him for a moment from the doorway of the small room. Out of the corner of his eye he could see the guard standing in the corridor beside him. Slowly Patrick...

  A GOOD MAN

  CATHRYN GRANT

  David had been a good boy and he was a good man. So why was this happening to him? He’d worked hard. The result was a five-bedroom home in Silicon Valley on a street with mature California oak...

  THE LAMB WAS SURE TO GO

  GAR ANTHONY HAYWOOD

  Ollie Brown finally got tired of chasing Jetta Brown’s tail. Jetta was Ollie’s wife, a fine and tart little thing who liked to wear dresses that made her teardrop body look like a shrink-wrapped party invite, and her man-mountain husband had been trying to force the idea of monogamy upon...

  SHELL GAME

  NEIL SCHOFIELD

  I was sitting in the office, with my feet up on the open desk drawer, the large bottom one where the whisky lived and had its being. I had a glass of J&B in front of me on the desk, but what I...

  3 FUNVENTIONS

  ABDÓN UBIDIA

  WATCHES When the first digital watches appeared, I hurried to buy one at Hans Maurer’s store. Scarcely was it mine when I grasped the real importance of my decision. I was not surprised by the absence of little toothed wheels, winding pins, and springs. I was not surprised by the flow of current...

  TEN THOUSAND COLD NIGHTS

  JAMES LINCOLN WARREN

  Elaine sat upright in the dimness and uttered a single choked word. “Uragiri!” It was barely above a whisper, but it was enough to wake Andy Lockhart from a restless slumber. He shook the...

  A GAME OF CONFIDENCE

  BILLY O’CALLAGHAN

  The back room was small and cramped. Cigarette smoke hung in a softly churning haze a foot or so beneath the ceiling, bars protected the small fogged-glass window, and the plaster had split in a dozen different places along the walls, exposing clammy, mud-colored patches of brickwork. The lights were...

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  THREE STRIKES

  STEVEN GORE

  Art by Hank Blaustein

  “I am gonna roll the dice,” Tank McBain told Evan Gordon inside the attorney’s visiting room in the San Francisco County Jail.

  “There aren’t any dice to roll.” Evan pointed at the police report lying on the metal table between them. “They’ve got two eyewitness IDs. They’ve got a partial license plate number on a truck that matches yours, and they’ve got the gun.”

  Looking over at his jumpsuited client, Evan wondered why he’d bothered to argue. No way Tank would take the case to trial. Twelve years in the Public Defender’s Office had taught him that the biker-crank-dealer-blue-tattooed Tanks of the world didn’t do trials. They’d just sic their county-paid lawyers on the evidence, delay the trial to give the prosecution witnesses time to fade in body or in memory, and then on the eve of jury selection cut a deal and go do their time.

  “We don’t gotta cave on the gun,” Tank said. “Go squeeze some money out of your boss, and we’ll hire our own ballistics guy.”

  Evan shook his head. “The lines and grooves in the slug they pulled out of the victim—”

  “Don’t call that punk a victim—”

  “—were so distinct, it was like a signature.”

  Tank’s face flushed. He leaned his six foot four–inch body forward and thumped the table with his knuckles. “My buddy’s sister is the real victim. After what that scumbag did to her, I’d have killed him myself if I had the chance.”

  “Then who shot him?”

  “I ain’t no snitch.”

  “What about the gun behind the seat of your pickup?”

  Tank shrugged. “Somebody must’ve tossed it back there.”

  Evan flipped open the police report, ran his finger halfway down the evidence list, then spun it around and asked, “Like this box of women’s jewelry?”

  Tank sat back. “That’s got nothing to do with this case, and I can’t talk about it.”

  Evan smirked. “Because you’re not a snitch?”

  “What good’s an alibi if you can’t use it?”

  Evan’s eyes narrowed. “You mean you were doing a burglary at the time of the homicide?”

  Tank nodded. “A house down in San Jose.”

  “Any chance you left prints?”

  Tank reached for Evan’s pen and legal pad and sketched a floor plan.

  “The jewelry was in the drawer of a dressing table between the closet and the bedroom.” Tank tapped the ballpoint along the side of what looked to Evan like a narrow hallway. “The place smelled like Victoria’s Secret the night before Valentine’s Day. My allergies kicked in and I sneezed. About ripped my head apart. I had to take off my glove to open a box of Kleenex so I could blow my nose. I didn’t want to spray no more DNA around.”

  Evan’s fists clenched under the table. Tank would still have to do some time, but this could be the best homicide alibi that had ever come walking through the jailhouse door. But the jury’s verdict would rest on a fact that Evan wasn’t certain would ever be in evidence.

  “How can you be sure of the time?” Evan asked.

  “Easy. The guy I was with tripped the alarm when he walked into the home office. Some kind of motion detector.” Tank pointed around the glass-walled interviewing room as if it were crisscrossed with sensors. “That’s where we were really headed. The jewelry was just a cover for what we were after: a hundred grand the guy was supposed to launder from a check scam. I looked at my watch: 10:12 P.M. No way I could’ve done the, uh, victim fifteen minutes later in San Francisco.”

  “It’s a hell of a defense,” Evan said. “The most you’d do on the burglary is six years. With good time credits, you’d be out in four.”

  Tank shook his head. “It wasn’t just a burglary. There’ll be an arson charge because my partner tried to torch the place to cover up the theft.”

  Evan shrugged. “So you do a few more years.”

  “It won’t be just a few.” Tank held up a forefinger. “I got one strike already.” He held up two more fingers. “If I get convicted on both . . .”

  Evan felt air escape in a rush from the balloon of his legal imagination. “And it’s three strikes.”

  “The most I’d get on a first-degree murder is twenty-five to life. But arson and burglary would mean I’d have to serve back-to-back twenty-fives before I got paroled. Fifty years minimum. And no credits. I’d be eighty before they opened the gate.”

  Evan exhaled, shaking his head. “And on a murder, you’d get a parole hearing after twenty-five.”

  “See, that’s why I’m gonna roll the dice. Maybe I’ll get lucky and I walk. The worst that happens is that I get paroled in twenty-five, thirty years. People in my family who don’t get murdered live into their nineties and I’ll only be sixty when I get out.”

  Tank leaned forward and rested his forearms on the table. “All I need you to do is to push the trial past the November election. Three Strikes is on the ballot. If it gets overturned, we can go with the alibi and I’ll only have to do time on the burglary and arson.” Tank grinned and spread his hands towa
rd Evan. “You’re a smart guy, file some motions or something.”

  Evan thought for a moment. Maybe he could work it. “I’ve got a couple of trials stacked up,” he said. “I’ll keep kicking yours down the road until the judge gets antsy.”

  “Even if the ballot measure loses,” Tank said, shrugging, “maybe the witnesses will decide they got better things to do than testify against a sweet guy like me.”

  Evan swallowed. “You’re not going to . . .’’

  “Nah, maybe they’ll just take a hike all on their own.”

  “How’s it look?” Tank asked Evan ten months later in the same interviewing room.

  “How’s what look?”

  “The trial.”

  “Judge Huffman says plead out or start trial on Monday.”

  “The D.A. offering anything?”

  “Nope. Still twenty-five to life.”

  “What about a manslaughter? A flat sixteen.”

  “How? You only get a manslaughter if there’s evidence that you killed the guy in a heat of passion or you mistakenly thought your life was in danger. He was shot in the back of the head from fifteen feet. Makes it hard to argue mistaken self-defense. And the witnesses all say you were—”

  “It wasn’t me.”

  “—lying in wait. So it wasn’t heat of passion.”

  Tank folded his arms across his chest. His biceps were two inches thicker than when he was first booked.

  “I told you to lay off the weights,” Evan said. “You’re going to scare the hell out of the jury. They’ll want to convict you of something just to keep you off the street.”

  “It’s not like I’m accused of strangling the guy. Anyway, I’m bored in here.” Tank unfolded his arms. “What about the other thing?”

  “The polls show the Three Strikes reform measure is leading by three points.”

  “With a margin of error of twenty-five years.”

  “Give or take.”

  Tank leaned back in his chair and thought for a moment.

  “When do we have to decide if we’re going with the alibi defense?” Tank asked.

  “It’s not only about us deciding. We have to inform the D.A. in advance.”

  “How far?”

  “The case law says we have to tell him only when we decide, but Huffman could preclude us from using it if we don’t let the D.A. know soon enough.”

  “Could we get a hearing?”

  “I think Huffman would have to give us one,” Evan said. “It’s a factual issue about how and when we decided. He’ll need a record so a conviction wouldn’t get thrown out on appeal.”

  Evan drew a calendar on his legal pad.

  “The way I figure it, the D.A.’s case will take a week, until Friday afternoon. We’ll have to start ours on Monday, but the election isn’t until Tuesday.” He jabbed his pen on Wednesday. “We need a way to kick the trial over.”

  Tank alerted to movement on the other side of the windows behind Evan.

  “See that blond-haired dude?” Tank said.

  Evan turned and picked out a tall tattooed inmate in a red jumpsuit issued by the jail to designate violent prisoners.

  “He’s the guy I did the burglary with. Jimmie Fagener.” Tank reached into a soiled manila envelope on the metal table, then handed Evan a stack of papers. “He gave me his case file. He don’t need it no more. He’s on his way to the joint and has got no grounds to appeal. Just stopped here to clear a warrant.” Tank pointed at the top sheet. “Look at the ID tech’s report.”

  Evan skimmed down the evidence list. Thirty latents had been lifted. Two partials from a Kleenex box.

  Tank was nodding when Evan looked up. “Now look at the interview the detectives did with Jimmie.”

  Evan flipped to the next page, read two paragraphs, then looked up.

  “He snitched you off. He says you did the burglary. Claims he wasn’t even there.” Evan reached out to return the papers. “The cops already know about you.”

  Tank held up his hand. “Keep reading. The witnesses only saw one guy running away and they’d already matched his prints to latents in the office, so they didn’t believe him when he blamed it on me.”

  Evan read further. The next paragraph covered the cops confronting Jimmie with his latents, then Jimmie deciding he wanted a lawyer.

  Evan shook his head. “Those idiots never checked the partials from the Kleenex box.”

  “No reason to. They had their man.”

  Evan stood up and began gathering his files. “I need to get a court order to keep the sheriff from shipping him off.”

  “Sit down.” Tank waved Evan back into his seat. “He won’t testify. He’s one of those snakes that’ll stab you in the back behind closed doors, but he’ll never testify out in the open. He’ll more likely take a swing at the judge than take the oath.”

  It was called making a bulletproof record for the inevitable appeal, and Judge Huffman strode into the courtroom like he was wearing Kevlar from head to toe.

  Huffman slipped on his reading glasses as he sat down. Evan got the message: Huffman wasn’t interested in hearing oral argument on Evan’s continuance motion. The written decision lay before him on the bench, fresh from his clerk’s printer.

  “Is there further argument?” Huffman asked, peering down at Evan like disapproving father. “Or is the matter submitted?”

  Evan figured he’d save his energy for a motion he might win. “Submitted.”

  Huffman tilted his head toward Assistant District Attorney Chalmers Bezener and raised his eyebrows.

  “Submitted, Your Honor.”

  Huffman began reading. “Let the record reflect that a hearing was held in chambers, outside of the presence of the district attorney, on the matter of defendant’s motion for a continuance. The hearing took place in camera for two reasons. One, because it required the disclosure of certain attorney-client matters relating to defense strategy. And two, it impinged on the defendant’s Fifth Amendment right not to incriminate himself.” Huffman looked up from the text. “The defendant’s motion is denied.”

  Huffman slipped off his reading glasses, then glared at Evan. “Suffice it to say, this Court, its calendar, and the People’s right to swift and certain justice shall not be subject to the whims of the voters.”

  Bezener’s head snapped toward Evan, “What the . . . ?” His chair jerked backwards as he rose to his feet. “Your Honor—”

  “Mr. Bezener, I said the motion is denied. Unless you now wish to move for a continuance, I suggest you sit down.”

  Bezener sat.

  Huffman began reading again. “The defense has also offered a motion to permit the testimony of an expert witness regarding eyewitness identification. I don’t believe the jurors in this matter need to be reminded by a white coat that eyewitnesses are sometimes wrong. They are perfectly capable of discerning that life lesson for themselves. Therefore, under Evidence Code Section 352, I find that the probative value of this testimony is substantially outweighed by the probability that its admission will necessitate an undue consumption of time. The motion is denied.”

  Huffman signed the decision, then set it aside.

  “Now, Mr. Gordon, you have indicated your intention to file two additional motions. One requesting the court to immunize a certain, unnamed witness, and one for belated permission to present an alibi defense.”

  Bezener leapt up again. “Your Honor, the People—”

  “I know, Mr. Bezener. I’ll insure that you have sufficient notice and time to prepare your rebuttal.”

  “Your Honor, once the trial starts, jeopardy attaches. The People don’t get a second chance.”

  “I’ll bear that in mind, Mr. Bezener.”

  Huffman then offered Evan a patronizing smile. “What progress have we made, Counsel?”

  Evan glanced down at Tank, who merely shrugged, his unblinking eyes staring forward.

  “None, Your Honor. You’ll know when I know.”

  “Jury selection wil
l begin at two o’clock.”

  Assistant District Attorney Bezener’s case lasted six days.

  Eyewitnesses: unimpeachable.

  Evidence gathering: by the book.

  Ballistics: above reproach.

  The jurors kept glancing back and forth between Evan and Tank, their narrowed eyes asking why they’d been forced to waste a week of their lives on an indefensible case. It was obvious to Evan that on the verdict forms in their minds’ eyes, they’d already checked the box marked guilty.

  Judge Huffman grinned at Evan as he took his seat behind the bench.

  “Mr. Gordon, have you consulted with your co-counsel Mr. Gallup, Mr. Harris, Mr. Pew, and Ms. L.A. Times?”

  Evan leaned toward Tank sitting next to him at the counsel table, then said in a low voice, “Time to roll the dice again. What do you want to do?”

  Tank glanced at his wife sitting behind him in the first row of the gallery. She rolled over her fist and raised her right thumb.

  “The polls say Three Strikes is on its way out,” Tank whispered to Evan. “Let’s go for it.”

  Evan rose. “The defense seeks permission of the court to enter an alibi defense.”

  Bezener stood and glared at Evan. “The People object to the late notice.”

  Huffman looked back and forth the between them and said, “Then let’s brief the matter. We’ll continue the trial until tomorrow morning.”

  “I’d also like to brief the defense immunity motion,” Evan said.

  “I think that’s premature,” Huffman said, “as the witness hasn’t yet invoked his privilege against self-incrimination.”

  “Your Honor,” Evan began the following morning, “I’ve been advised that Jimmie Fagener will assert his Fifth Amendment privilege if called as a witness in this matter.”

  “Let’s have him do it before we call in the jury.” Huffman pointed at the bailiff. “Bring in the witness.”

  Jimmie Fagener glowered at Tank as he was led into the courtroom and into the witness box. One bailiff stood to his right to block an escape, and one to his left to block an assault on the judge.

  “I take the Fifth,” Fagener said. Huffman didn’t bother looking over at Fagener. “No one has asked you anything yet.”