Chapter 9

On Monday Nina filed a motion under Penal Code Section 995 seeking to have the case dismissed. Her reason was that the state’s only witness was dead and thus no longer available to testify against my father. Seemingly in response, Crowder moved to revoke Lawrence’s bail. Both motions were heard the following Friday in Judge Liu’s court.

Liu heard bail arguments first. At the podium, Crowder said, “Two weeks ago, the state’s confidential informant was murdered. For nearly six hours, investigating officers from Oakland, San Francisco, and numerous other jurisdictions tried but were unable to locate the defendant. He was finally taken into custody in San Rafael, where he’s been living out of the court’s jurisdiction. The state asks the court to revoke bail.”

Lawrence sat stone still, not reacting after the lecture Nina’d given him following his outburst last time. She now turned in her chair to stare at Crowder with disbelief.

“You’re not contending that he violated any bail condition?” the judge asked.

“His only alibi is a story from his girlfriend that they were out riding motorcycles together a hundred miles from here. This is a defendant out on bail. The whereabouts of Mr. Maxwell’s sons are also unknown at the time of the crime.”

A murmur ran through the courtroom, and I sat bolt upright as if I’d received an electric shock. I could tell by the anger on Judge Liu’s face that Crowder had miscalculated. I felt Dot lay a hand on my arm. Her eyes were cold, and she gave me a nod. Let’s get them, her gaze seemed to say.

“It’s not my place to question her story, at least not now. You don’t have the murder weapon, or any evidence of his involvement. So far, all you have is motive. Am I right?”

“I’m told that phone records reveal numerous instances of contact between the defendant and the victim beginning the very day the defendant was released by this court.”

“That’s pretty thin. As I understand it, they were friends in prison. Anything more?”

Crowder glanced at Shanahan, who shook his head. “The state can’t reveal any more details. Especially not with the subject of the investigation sitting right here.”

“Then I’m going to deny your motion to revoke bail,” Judge Liu said. “If you’d charged him, it would be a different story. I will, however, add a no-travel condition. The defendant shall restrict his movements to San Francisco, Alameda, and Marin Counties unless he first gives notice to the prosecution and obtains permission to travel from me.”

Crowder sat down. Now it was Nina’s turn. She took the podium with quiet anger but said nothing.

“I’ve read your motion to dismiss,” Judge Liu said. “You correctly point out that the state’s case is based entirely on Detective Shanahan’s testimony. You also note that with Russell Bell dead any statements Bell made to the detective or anyone else can only be introduced as hearsay. The Constitution says that criminal defendants have the right to confront their accusers. This means no hearsay. However, if it’s the defendant’s fault that the witness is ­unavailable—for instance because the defendant had him ­murdered—there’s an exception to the no hearsay rule.”

“Your Honor is referring to the forfeiture by wrongdoing exception.”

“You’ll agree with me that if Maxwell arranged for Bell to be murdered, it follows he can’t reap the benefit of that act and keep Bell’s hearsay statements from coming into evidence.”

“The forfeiture doctrine doesn’t apply until he’s proven guilty of murdering the witness,” Nina said. “As you’ve just noted, my client has an alibi. In addition, there would have to be a specific finding that Bell was murdered for the purpose of keeping him from testifying in this case. Not some other reason. The prosecution hasn’t even come close to making that showing.”

“Thank you,” Liu said. With Crowder back at the podium, Liu probed her with questions regarding our backup argument: that the potential harmful effect of the confession might still require it to be kept out, even if the state met the low bar of producing “evidence sufficient to support a finding” that Lawrence was involved in the hit. As the judge pointed out to Crowder in a question she couldn’t satisfactorily answer, he could always instruct them to ignore the confession after they’d heard it, but the jurors were human beings, and unlikely to forget it.

Seeing the battle slipping away from her, Crowder at last said, “Russell Bell’s body is hardly cold. The state ought to at least be given the opportunity to develop proof that Maxwell was involved and that his alibi was a sham.”

Liu agreed, and scheduled an evidentiary hearing prior to trial. “The bar is going to be higher than just sufficient to support a finding, Ms. Crowder, given the devastating effect of Maxwell’s alleged confession to Bell, and the likelihood that the jurors would be unable to put it out of their minds even if I instructed them in the strongest terms to do so. To get that confession into evidence without Bell as a witness, you’re going to have to prove to me that it’s at least more likely than not that Maxwell was behind Bell’s murder—and you’ve got five weeks to do it.”

~ ~ ~

“I’m incensed,” Nina said after the hearing. The others had gone home. I’d accompanied her to her office to take stock. She went on. “It’s one thing to accuse your father, but now they’re trying to drag you and Teddy in. The implication of what she said is that you and your brother are suspects in Bell’s murder. A family vendetta is what it’s starting to look like.”

“You think they’re going after Teddy and me.” I was struck again by how she’d reversed positions. Just last week, she’d all but accused Teddy of being involved.

“It’s what they’d like to do.” Seeming to become aware that she’d changed viewpoints, she said, “With every case, every client, there’s an initial holding back. You want to maintain that distance, that objectivity, as long as you can. But for me, when it comes to certain cases, there’s a tipping point. Starting today, I’ve reached it.”

“You seem different. Maybe more relaxed.”

“I’m angry. It’s a good anger. Invigorating.” She looked at me for a moment across the desk, and I felt a spark pass between us before her focus snapped back. “Now what’s this about calls from your office to Bell?”

I told her what I’d found in the phone records, information I should have given her before. I had no good explanation for having held back, so I offered no excuse.

The spark was extinguished now. “Anything else I ought to know?”

“I went to the funeral home. Dad was there. So was Jackson Gainer. Like he was standing guard. Shanahan, the detective, also turned up.” I thought of my father’s admission that he’d tried to get money from Bell. No point in sharing that with her now.

“Jackson Gainer. Standing guard over what? What else?”

“He told me that the DA thinks that a man named Bo Wilder may have been behind Bell’s murder. Bo’s in San Quentin, but he has people on the outside. He protected my father when there was a price on his head.”

She studied me skeptically, processing this new information. “I don’t want to lose this case because you end up stumbling on something best kept under wraps.”

“Don’t worry, I’ve got plenty of my own cases to work.”

“Good. I’m glad to hear it.”