Gregg Hurwitz - The Kill Clause

The DA, a sharp, well-put-together woman in her early thirties, had sat with Tim and Dray for a few moments before the preliminary hearing had begun, offering further condolences and assurances. No, she wasn’t making a case for an accomplice, since that could open up the door to a reduced sentence for Kindell. Yes, she was going to nail Kindell’s ass to the wall.

Despite her prudish name-Constance Delaney-she was a tiger of a prosecutor, with a stellar track record. She opened strong, fending off the defense’s motion to reduce the high bail set at arraignment. She artfully examined Deputy Fowler, working to establish probable cause to bind the case over to trial, while trotting out as little of her case strategy as possible. Fowler spoke clearly, without sounding coached. He left out Tim and Bear’s presence at Kindell’s dwelling without committing anything to the record that could be contradicted. CSU’s delayed arrival to the crime scene did not arise.

Kindell sat erect, attentively watching all the proceedings, his head swinging back and forth from Delaney to Fowler.

It wasn’t until the cross that things came unwound.

“And of course you had a warrant to search Mr. Kindell’s property…?” The public defender shuffled closer to the witness stand, the sheaf of yellow legal-pad pages swaying in his hand. Delaney propped her chin on her fist, jotting notes.

“No. We knocked and introduced ourselves, asked him if we could take a look around. He clearly gave oral consent for us to search the area.”

“I see. And that’s when you discovered”-a few moments as the PD shuffled through the sheets of paper-“the hacksaw, the rags stained with what was later identified to be the victim’s blood, and the truck tires with tread that matched that at the scene of the crime?”

“Yes.”

“You discovered all of these things after he gave you consent to search the property?”

“Yes.”

“With no search warrant?”

“As I said-”

“Just yes or no, please, Deputy Fowler.”

“Yes.”

“At which point you began arrest procedures?”

“Yes.”

“You’re entirely certain, Deputy Fowler, that you Mirandized Mr. Kindell?”

“One hundred percent.”

“Was this before or after you cuffed Mr. Kindell?”

“I suppose during.”

“You suppose?” The public defender dropped a few of the sheets and crouched to pick them up. Tim was beginning to suspect that his bumbling-lawyer routine was just that.

“I read him his Miranda rights as I was cuffing him.”

“So he wasn’t facing you?”

“Not through all of it. He was turned around. We generally handcuff suspects from behind.”

“Uh-huh.” The PD’s pencil poked at his upper lip. “Are you aware, Deputy Fowler, that my client is legally deaf?”

Delaney’s hand slipped from her face, slapping the table and breaking the perfect silence of the superior court. Judge Everston, a small, pucker-faced woman in her late sixties, bristled in her black robes as if she’d been shocked. Dray’s hand pressed over her mouth so hard her nails left red imprints in her cheek.

Fowler stiffened. “No. He’s not. He understood everything we said to him.”

His stomach churning, Tim recalled Kindell’s uneven voice, its lopsided cadence. Kindell had responded only when spoken to directly and when he’d been watching his questioner. Tim’s chest tightened painfully, a vise closing.

The PD turned to Judge Everston. “Mr. Kindell lost his hearing nine months ago in an industrial explosion. I have his treating physician in the hallway, who I’m prepared to call as a witness to testify that he is legally deaf, and two independent complete audiology reports showing bilateral deafness here.” He raised a manila folder, promptly scattering the papers it held, then retrieved them and handed them to the judge.

Delaney’s voice lacked its usual confidence. “Objection, Your Honor. The reports are hearsay.”

“Your Honor, as those records were produced directly to the court from USC County Medical pursuant to a subpoena duces tecum, they are exceptions to the hearsay rule as official records.”

Delaney sat down. With a stern frown, Judge Everston reviewed the file.

“Mr. Kindell is able to read lips, Your Honor, though only minimally-he’s never received professional instruction in this area. If he was being cuffed during the admonishment, he would have been facing away from Deputy Fowler’s mouth. Any questionable chance he might have had to comprehend his Miranda rights was surely eliminated. His confession was made without any clear knowledge of his rights.”

Delaney broke in. “Your Honor, if these officers made a good-fai-”

Judge Everston cut her off with a wave of her hand. “You know better than to come at me with ‘good-faith effort,’ Ms. Delaney.” Judge Everston’s mouth tightened, wrinkles ringing her lips. “If Mr. Kindell is really deaf, as counsel has indicated, there would seem to be a clear Miranda problem.”

The public defender rocked forward on his shoes. “Further, the defense requests that all physical evidence found at my client’s house be suppressed, as the search was in violation of the Fourth Amendment.”

Dray’s voice, small and strained, escaped from beneath the hand she held cupped over her mouth. “Oh, God.”

Delaney was on her feet. “Even if the defendant is legally deaf, he can still give legally binding consent to search, and the evidence should not be suppressed.”

“My client is deaf, Your Honor. How on earth could he give knowing and voluntary consent for a search-and-seizure request he didn’t even hear?”

Kindell turned, craning his neck to locate Tim and Dray. His smile was not malicious or gloating, rather the pleased grin of a child allowed to keep something he’d just stolen. Dray’s face was drawn and bloodless and, Tim was fairly certain, a match of his own.

“What other physical evidence do you have, Ms. Delaney, linking Mr. Kindell to the crime scene and the crime?” Judge Everston’s bony finger emerged from the folds of her robes, pointing at Kindell with thinly veiled disdain.

“Aside from what we recovered at his residence?” Delaney’s nostrils flared. Her skin had reddened in blotches spreading down her neck to the high reaches of her chest. “None, Your Honor.”

Something escaped Judge Everston that sounded remarkably like “Goddamnit.” She glowered at the PD. “I’m calling a half-hour recess.” She exited, taking the audiology reports with her, not seeming to notice that half the courtroom forgot to rise.

Dray leaned over as though she were going to vomit, digging her elbows into her stomach. Tim’s shock was so heightened it actually set his ears humming and pinched his vision at the sides.

The recess seemed to stretch on for decades. Delaney glanced back at them from time to time, her pen tapping nervously on her pad. Tim sat numbly until the bailiff entered and called for order.

Judge Everston hoisted her robes as she took the bench, her short stature apparent until she settled into position. She studied some papers for a few moments, as if mustering the strength to proceed. When she spoke, her tone was heavy, and Tim knew immediately she was about to impart bad news.

“There are times when our system, with its protections of individual rights, seems almost to conspire against us. Times when the ends justify the sordid means, and we must shut our eyes and take our medicine, despite the fact that we know it will kill a little part of us to serve a greater health. This is such a case. This is one of the sacrifices we make to live with liberty, and it is a sacrifice paid unjustly and by an unfortunate few.” She tilted her head regretfully toward Tim and Dray in the back row. “I cannot in good faith allow evidence which will clearly be overturned in an appellate court. As the audiology reports are unequivocal about Mr. Kindell’s bilateral deafness, it strains my credibility to believe that a deaf man with no formal training in lip-reading comprehended the intricacies of his Miranda rights or the oral consent he was asked to grant. It is not without considerable despondency that I hereby grant the motion to suppress evidence, with respect to the alleged confession and any and all physical evidence recovered from Mr. Kindell’s residence.”