JUDGE DAVID STEIN’S chair squeaked as he leaned back, laced his fingers behind his head, and gazed unseeing at a photograph of Helen Mercer and her lieutenant governor on the wall opposite his desk. “You’re right. This doesn’t look like your ordinary snowgo accident.”
“No, Your Honor,” Procopio said. “It was at least manslaughter. And then leaving the scene? And that snowgo in the water? Obstruction of justice, destruction of evidence? All felonies with clear intent.”
“That’s how my department sees it, too, Your Honor,” Active said.
“Mr. McConnell?”
There was a pause, then a cough of static from the speaker phone on the table in front of the Mercers as their lawyer un-muted himself and came on the line from Anchorage.
“We’re not here to argue whether a crime was committed, Your Honor. Our only position is that the contents of Wise versus Mercer cannot possibly have any bearing on the matter, and therefore there is no earthly reason to unseal it. The governor is an innocent bystander here. First, somebody steals Mr. Mercer’s snowmobile and now the state has launched this fishing expedition to drag Pete Wise’s ridiculous lawsuit into it. Given the governor’s position and what a target of lurid popular obsession she is, the ridicule, rumor, and speculation that will inundate her should this become public will be completely out of proportion to its investigative value, which we maintain is nil, in any event.”
The Mercers nodded vigorously from their table.
Stein raised his eyebrows in acknowledgment and lifted the top off the candy jar on his bench. “Dark chocolate?” He pulled out a tiny Hershey bar and unwrapped it. “Guaranteed to increase life expectancy and libido.” He slipped it into his mouth and held it there without chewing. “Though why you’d want more of either one in Chukchi is hard to imagine.”
Active, Procopio, and the First Mate grinned. The governor frowned, then covered her mouth. Masking a smile, Active figured.
“Don’t mind if I do,” Procopio said. She took two of the judge’s miniatures as his clerk Doris passed the jar around. The prosecutor swallowed and closed her eyes for a moment. “I don’t know if dark chocolate really does make you live longer. But it sure makes life easier to bear. Especially in Chukchi.”
Active and Brad Mercer declined the jar. The governor took a single miniature and Active found himself unable not to watch as she put it on her tongue and slid it between her lips. She caught his gaze and he jerked it away.
“Ms. Procopio? What say you? Why exactly is it you think you need to look at this file?” He tapped the folder on the bench before him.
“As you know your honor, investigative discretion is very broad in a felony like homicide. The fact that Pete Wise was killed by a snowmobile within days of suing Mr. Mercer is so strong a coincidence that we can’t rule anything out at this juncture. We have to check off every item on our list that might remotely relate to the death, and this file is one of them. If it’s not relevant, it’s in the interest of all parties to establish that fact promptly so the investigation can focus elsewhere.”
“Mr. McConnell?” Stein said.
Procopio cut a glance at the governor, who returned a glare of pure hatred. “You catch that push-up bra she’s wearing?” the prosecutor muttered.
“Absolutely not,” Active muttered back.
“The other testosterone-based units in the room did, trust me. Especially Stein.”
“Your Honor,” McConnell said over the phone. He, at least, would be immune by virtue of distance from the distractions of Mercer’s attire. Knowing the governor as he did, Active was pretty sure chance had played no part in her choice today of a satiny, clingy scarlet blouse under her blazer and, architecturally assisted or not, a generous display of cleavage.
“My clients have already explained the snowmobile was stolen,” McConnell was saying. “Is Ms. Procopio saying Brad Mercer is nonetheless suspected of Pete Wise’s murder? If so, this smacks of a vendetta and we may need to invoke the Fifth Amendment here and suspend proceedings in this case while the investigation proceeds.”
“Calm down, Mr. McConnell, calm down. Mr. Mercer can invoke his Fifth Amendment rights and keep silent if he wants to, but we’re not asking him to talk in court today anyway. The sole purpose of this hearing is to determine if this file”—he tapped the folder again—“should be unsealed and made a public record again. There’s a very strong presumption to that effect in Alaska, as I’m sure you know.”
“We must object, Your Honor,” McConnell said.
Procopio was on her feet. “Your Honor, Mr. McConnell, strictly speaking the state doesn’t need the file made public. We just need it for investigative review. We’d be happy to take it under seal and stipulate—”
Now the governor was on her feet. “We object, Your Honor!”
“But I haven’t even ruled.” Stein pointed at the telephone on the Mercers’ table. “And we usually let the lawyers do the talking at hearings like this.”
“Your Honor,” McConnell said. “May I confer with my clients?”
The governor looked questioningly at the judge, who shook his head with a resigned expression. “Sure, be the court’s guest. Governor, Mr. Mercer, you can use my chambers to call Mr McConnell.”
Doris led them out. Procopio doodled on her pad. Active checked email on his phone. Stein, he saw from the corner, was engaged in something on his computer that seemed to absorb his full attention. He doubted even a judge would have the nerve to watch porn in court, but what? Then he recognized the pattern of clicks and drags. His Honor was playing solitaire.
In another minute, the clerk and the Mercers were back.
“Your Honor, I want to a—”
“Please, Governor,” Stein said. “Our clerk needs to call Mr. McConnell and we have to go back on the record before anybody can say anything.”
Mercer fell silent and sat down. The clerk consulted her notepad, dialed, and put McConnell on speaker again.
“Your Honor,” McConnell said, “Mrs. Mercer wishes to say something.”
“Governor,” Stein said.
“I’m sorry for interrupting. It won’t happen again.”
“Thank you, Governor. Now, if we may proceed?”
“The governor did in fact state our position,” McConnell said. “With respect to releasing the file, we think it’s either all or nothing in a small town like Chukchi. Once the prosecutor’s office takes it under seal, the chances are far too great that—”
Procopio was on her feet again. “Your honor, now we object. My office is not a Swiss cheese! We will not let the contents of that file—”
Stein rapped his gavel. “Good grief, people. This is an actual courtroom, not Judge Judy. Let’s get a grip.” He paused and cleared his throat.
“The fact is, I’m persuaded that the presumption of investigative discretion is sufficiently strong that the state should see the file. However, I’m doing so under the proviso that it remain closed to the public and the state take it under seal and hold it confidential absent further proceedings before this court.” He raised his gavel again.
“Motion to reconsider, Your Honor,” McConnell said from the phone.
“Say what? On what grounds?”
“Two grounds. One is, we’re confident Your Honor is wrong on the matter of investigative discretion, which we will demonstrate by further briefing and argument, followed if necessary by appeal to the state Supreme Court.”
Stein shook his head. “Threats of appeal never go out of style, I guess. And your second ground, Mr McConnell?”
“The Fifth Amendment, Your Honor. We need time to brief and argue our position that opening that file could compromise Mr. Mercer’s protection against self-incrimination, also to be followed by appeal if necessary.”
Stein put his head in his hands. “Ms. Procopio?”
“What can I say? The state thinks Mr. McConnell’s arguments are specious and we want the file.”
Stein sighed. “A reconsideration hearing it is.”
He flipped through a binder—his calendar, Active figured—and put down his finger. “Same time a week from today. Work for everybody?”
The parties nodded.
“Anything else before we go?” Stein asked.
“Yes, Your Honor,” the governor said.
“Ahem,” Stein said.
“Sorry,” McConnell and the governor said in unison.
“But my client is right,” McConnell went on. “We’re also filing to block any effort by the state for a search warrant on the victim’s home.”
“Say what?” Procopio and Stein asked in unison.
“That’s correct, Your Honor. One thing flows from the other. It’s fruit of the poisoned tree.”
“I think I see where you’re heading,” Stein said.
“Yes, Your Honor,” McConnell said. “We have little doubt there are copies of the files in printed or digital form at the house, as well as at his workplace and in any safe deposit box he may have. So our filing will cover those, as well.”
“Ms. Procopio?” Stein said in a weary tone.
“Of course we want to search the victim’s house. There could be evidence there related to his death but unrelated to the lawsuit at issue in this hearing, and the Mercers have no expectation of privacy in Pete Wise’s home in any event. As for the fruit-of-the-poisoned-tree argument, that’s easily dealt with. We’ll stipulate to conducting the search jointly with Mr. McConnell and he can—”
“Your Honor, they’ve waited this long,” McConnell said. “They can wait another week.”
“Agreed. It’s all on hold till our next hearing. Everybody get your motions in by Tuesday at four-thirty, responses by eight a.m. Thursday. And happy reading to all of you.”
Roger Kennelly pounced outside the courtroom, microphone standing at attention. “Governor, Governor. Can we get an interview for Kay-Chuck?”
The station got its money from the state, Active knew, like practically every other organization in Chukchi. Kennelly had long gray hair and and a flowing beard that made him look a little like Buffalo Bill. He been in public radio a long time, long enough to know he couldn’t push Mercer too hard. But at least he was giving it a shot.
“It’s a non-story,” Mercer said with a touch of asperity Active hadn’t seen her show in public before. She seemed to realize it herself, and tugged the scarlet blouse into proper clinginess and lowness then touched Kennelly’s wrist before continuing in a softer tone and with lots of eye contact. “This is just another of the crazy things that’s been coming out of the woodwork ever since I came to national prominence. I don’t know who or what’s behind this, but it’s nonsense and I wish my political enemies and the lamestream media would leave my family and me in peace”—here she paused just long enough to shoot Kennelly a blood-freezing stare without it becoming too obvious—”so I can get on with running this great state of ours.” She touched Kennelly’s arm and leaned forward as if to whisper into the mike. “Right, Roger?”
“Uh, right, governor, absolutely,” Kennelly said, his eyes exactly where they shouldn’t be and Mercer no doubt wanted them to be. “But what—”
The governor detached herself. “And I want to thank you for the great job your station does for our region. And you tell that station manager of yours, if there’s anything more from the state she needs to run Kay-Chuck properly, all she has to do is give me a call, OK?”
“Sure, governor, I’ll—”
“And call me Suka, how many times have I told you?”
Kennelly nodded.
“Oh, and thank you for your great coverage of the new women’s center. I hope you’ll be there for the ribbon-cutting a little bit later?”
“Yes, ma’am.”
“Roger…?”
“Yes, Suka. I’ll be there.”
“WHAT THE FUCK was that?” Procopio said a few minutes later as they flopped down in her office.
Active shrugged. “I don’t know. A honey trap for the hapless Roger?”
“That bitch.”
“Actually, she looked pretty hot in that blouse. You gotta admit.”
“Fuck you. But seriously.” Procopio tapped a pen on the brief she had filed in their effort to get into Wise versus Mercer. “Further briefs? Further argument? Appeals? What is this, the Pentagon Papers?”
“They’re stalling.”
“Well, yeah. But why? What’s gonna happen in a week?”
“Look on the bright side,” Active said. “Maybe we’ll figure it out by then without the file.”
“Yeah, right. Or maybe an asteroid will hit the earth and put us out of our misery.”