David Kessler - Mercy

“Is the defendant represented by counsel?”

“Yes, Your Honor. Alex Sedaka. I appear on behalf of the defendant.”

“Does the defendant wish to enter a plea at this time?”

“The defendant pleads not guilty and requests Release on Recognizance.”

The judge turned to the ADA, a woman in her early thirties.

“The defendant has eighteen priors and is a career criminal, Your Honor.”

“That’s over the course of thirty-seven years, Your Honor,” said Alex. “That’s less than one every two years.”

“You sound like you’re boasting on behalf of your client, Mr. Sedaka.” The judge turned to the prosecutor. “Is he a flight risk?”

The ADA looked down at her notes.

“He’s never jumped bail, Your Honor. But he is a career criminal and a recidivist offender. For this reason we oppose RoR. However, we’re ready to consider bail.”

“In what amount?”

“A hundred and fifty thousand dollars.”

“Oh gimme a break!” Lee blurted out.

“You’re out of order, Mr. Kelly. You’ll address your remarks through your counsel. Keep your client in line, Mr. Sedaka.”

“I apologize, Your Honor.”

Lee nodded and mouthed his own apology to Alex.

“Does the defendant wish to propose a counter-figure?

“Yes, Your Honor. While we maintain that RoR is indicated in the present circumstances, our fallback position is that if bail must be set then, in the absence of a felony specification, it should be treated as misdemeanor burglary and bail set at five thousand dollars.”

“Your Honor,” the ADA chipped in, “there’s no way the People will consider misdemeanor burglary.”

“Okay, but that still leaves a choice between felony first and second.”

“We’re inclined to go for first, Your Honor — subject to discussions with defense counsel.”

This was just a bargaining tactic, to secure a plea. Setting bail high and threatening first degree burglary was just for added leverage. The ADA was inviting the judge to collude in the enterprise.

“Was it a domestic burglary?”

“That has yet to be determined, Your Honor.”

“Your Honor, my client has no priors for domestic burglary,” said Alex as the judge turned to him. Alex hadn’t even seen the case file, so he was whistling in the dark. “If it was domestic, it would be a first.”

The judge turned back to the ADA. She shook her head as if she had seen it all before. The judge looked quickly flipped through the bail schedule for the San Francisco district.

“In the absence of a charge-specification, bail is set in the amount of forty thousand dollars. Does the defense agree to waive the right to a speedy — ”

“Yes, Your Honor.”

“Okay, we’ll set the preliminary hearing at… October 10. Next case.”

They went to settle the paperwork with the payments clerk and Alex was in such a hurry to get to the Federal District Court for the hearing on the new evidence, that he paid the money on one of his own credit cards, rather than haggling with one of the bail bondsmen. Then he turned to a grateful looking Lee Kelly.

“Now I’ve got a little job for you, ” said Alex as his phone rang.

Juanita was Googling “Edgar Olsen” and “suicide” in an effort to get the date of death.

“Gotcha!”

May 17, 1998.

The phone rang.

“Alex Sedaka’s office.”

“It’s me,” said Alex, sounding glum. “I just had a call from Nat.”

She felt the hope drain out of her.

“What happened?”

“They turned us down.”

“Did they give any reasons?”

“Res judicata, evidence claims not backed by certified documents, evidence fails to prove innocence or raise significant doubt.”

She was about to say something, but she couldn’t trust her voice to speak. Throughout the day she had kept her emotion at bay. She was a professional after all and this was just another case. But this was different. It was a capital case. A man’s life was in their hands … and they were failing him.

Yes, he may be guilty. But whatever his faults he was still a human being and… there were increasing signs that he was innocent. Juanita was about to speak, but again she felt the lump in her throat stopping her. For a second she thought that she could hold up. Then she broke down, sobbing into her forearms.

“How’d she take it?” asked Nat.

“As expected.”

Alex and Nat were driving back to the office separately, talking to each other on their cell phones.

“Was she crying?”

“It sounded like it.”

“Maybe I should have told her directly.”

“Look, we haven’t given up…”

“No, but let’s face it, Alex, we’re running out of options.”

“I’m going to have to call the governor and try and convince him with what I’ve got.”

“What do you think he’ll say?”

“I haven’t a clue.”

“Will you call him now or from the office?”

“I’ll call him now. One last thing… I asked Juanita to get me the date of Edgar Olsen’s suicide.”

“And?” replied Nat, keenly.

“She told me it was May 17, 1998.”

“Any particular reason for your interest?”

“Well I was just considering the possibility that Dorothy’s father might have killed her.”

Nat hesitated and then spoke again.

“But May 17 was before she left, wasn’t it? And even according to the original trial evidence, she was alive at least six days after his death. So he couldn’t have killed her.”

“I said it was just a theory. And you’re right. The date of the flight was the 24 thMay. But what’s interesting is that she bought the ticket on May 19 — two days after Edgar’s suicide.”

“That still rules out any possibility of him killing her.”

“Yes, but it doesn’t rule out the possibility of her killing him . We know from the poem that she had some sort of grudge against him. Maybe she killed him and staged it to look like suicide. Maybe that’s why she went to England for the abortion.”

“What’s going to England for an abortion have to do with making it look like suicide?”

“I mean, that’s why she went to England for the abortion instead of having it over here — because she had to get out of the country fast! She was afraid that if she stayed in America she’d be arrested.”

“But if she staged it to look like suicide, she wouldn’t need to run away.”

“Maybe she couldn’t be sure . And then there’s all that money she paid to the medical center. That could’ve been a payoff for their silence. They might have found out that she was wanted for murder and blackmailed her.”

“But she wasn’t wanted for murder.”

“But she might have thought she was.”

“Yes, but she would hardly have told them that.”

“What about if she was under anesthetic? Or when the anesthetic wore off? Don’t people sometimes say things at that stage that they wouldn’t say otherwise? I heard it’s like sodium pentothal.”

He was expecting Nat to shoot him down in flames and tell him that he was on a flight of fancy. But Nat’s response surprised him.

“Of course! Now it makes perfect sense!”

“What does?”

“What David said.”

“David?”

“Yes. He called again … while you were out.”

“And what did he say?” asked Alex, excitedly.

“He found another verse of that poem.”

“And?”

“Well it pretty much backs up your theory about Dorothy killing her father. He kept going on about the similarities to a Sylvia Plath poem.”