Phillip Margolin - The Associate

Dobbs had been living in a trailer park on the outskirts of town; a privilege he’d earned when he agreed to turn state’s evidence. His trailer was at the far end of the last row; beyond it were wide-open spaces. Martin neared the trailer door. Somewhere in the hills a coyote howled. The sound unnerved him. He collected himself before knocking on the metal door. No one answered the knock. Martin strained to hear movement inside the trailer. A stiff wind rattled the metal siding. “Dobbs! Open up!” The coyote howled again and an eerie wailing answered his call. The coyotes were hunting. So was he. Martin took out his. 45 and opened the door. He paused for a moment, listening.

Then he stepped inside praying that Dobbs was not waiting for him in the dark. Another step. Nothing. Martin touched a switch on the wall.

Light filled the narrow confines of the trailer. Martin turned slowly and saw a sink filled with unwashed pots and dishes and a countertop littered with empty beer cans. Dobbs’s clothes were scattered along the floor leading to his bed. Then he noticed a shape under the covers on the bed, and the hair stood up on the nape of his neck. “Lester,” he called, but he knew that Dobbs was not going to answer. Martin pulled back the thin green blanket and the sheet, then stepped back and stared. A deep, jagged gash started on one side of Dobbs’s throat and ended at the other. The sheets were coated with dried blood. If Dobbs knew anything about the identity of Melissa’s kidnapper, he had taken the information to the grave.

“He’s been dead for two days,” Norm Chisholm told Martin. They were sitting in a police car. It was seven in the morning. Alvarez was cradling a cup of steaming-hot coffee. It tasted like battery acid but helped him keep his eyes open. “Did anything in Dobbs’s trailer connect him to Melissa?” “Nothing so far, and the forensic guys have been over every inch of the place. But I didn’t expect to find anything. We questioned Dobbs as soon as Gene reported the kidnapping.

He had an alibi.” “Then why kill him?” Martin asked. “It doesn’t make any sense.” “Dobbs must have known something that threatened the kidnapper. Maybe he lied when he testified that he didn’t know the person McCann called after he killed Patty.” “Does this let Gene off the hook?” Martin asked hopefully. “Afraid not. Dobbs was killed the night before we arrested Gene. Gene was alone all evening. He has no alibi.”

A week after Dobbs’s murder, Paul McCann’s wife was waiting for Aaron Flynn by the door to Judge Schrieber’s courtroom. “Will you get him out?” Joan asked, anxiously twisting the strap of her purse. Her blue eyes were sunk in their sockets and there were dark shadows around them. “I think so, Joan, but there are no guarantees in this business.” Flynn patted her on the shoulder and smiled. “We’ll have our answer soon.” Joan started to say something, but she stopped when she saw Martin Alvarez bearing down on her husband’s attorney. “Ramon told me what you’re trying to do, Flynn.” “I’m trying to do my job, Martin. This isn’t personal.” “It’s personal to me,” Alvarez said in a chilling tone. “Your client is safer in jail, safer on death row, than he’ll be if he walks out of this courthouse.” “Martin, this is not the way,” Flynn said in a conciliatory tone. “McCann killed my wife. If the law doesn’t punish him I won’t wait to find out if God will. Let him know that.”

“You’re asking for a new trial, Mr. Flynn?” Judge Schrieber said.

He had read Flynn’s motion and the memorandum of law in support of it and he looked very troubled. “Yes, Your Honor. My memo sets out the relevant cases and statutes. Read together, they hold that you must order a new trial if an appeal can’t be prosecuted because the reporter’s notes have been lost or destroyed through no fault of the defendant, every reasonable effort has been made to find a substitute for the missing record, and the defendant has made a prima facie showing of error or unfairness in the trial. “I’ve submitted a list of potential trial errors that I would have asserted as bases for reversal on appeal. There is no substitute for the missing record of Mr. McCann’s trial. The police have made every reasonable effort to recover it and the record is missing through no fault of Mr. McCann.”

“What do you say to Mr. Flynn’s argument, Mr. Quiroz?” the judge asked. Ramon rose slowly, as if trying to delay the inevitable. “I agree that Mr. Flynn has raised several issues that could lead to reversal, though I don’t think they actually would.” “But that’s not the test, is it?” Judge Schrieber asked. “He doesn’t have to prove he would win. You aren’t asserting that?” “No. I agree that Mr. McCann has met the test of making his prima facie case on the possibility of error in the trial. I don’t agree on much else, though. For instance, the police have searched pretty thoroughly, but they’re not through looking. I think the court should give them more time.” “Where are they going to look, Your Honor?” Flynn asked. “They searched both of Mr. Arnold’s residences, Mrs. Arnold’s car, her office, his office.

This appeal has to be prosecuted quickly. We can’t wait indefinitely in the hopes that years from now the transcription tapes may show up.”

“Mr. Quiroz,” the judge asked, “do you have anything more than wishful thinking that leads you to believe that the lost record in this case will soon be recovered?” Ramon shook his head. “No, Your Honor, I don’t. I just feel that it’s too soon to give up.” “Is there a substitute for the missing record?” “No, Your Honor. None that I know of. It seems that the notes and backup disks for every case that Mrs.

Arnold had on appeal were with her when she was abducted and there are no copies.” “If that’s so, and you have no real hope of finding the originals, and the defendant had made a prima facie case for the possibility of reversal, what choice do I have except to grant this motion for a new trial?” “We would argue that Mr. McCann is at fault here. How do we know that he wasn’t involved in the kidnapping of Mrs.

Arnold?” “Your Honor,” Flynn retorted, “this is an argument that grows out of sheer desperation. Mr. Quiroz prepared the warrant that led to the arrest of Gene Arnold for his wife’s murder. There has never been a hint of a suggestion that Mr. McCann, who was in jail at all times relevant to the Arnold case, had anything to do with the second kidnapping.” “Mr. Quiroz?” the judge asked. Ramon knew when he was whipped and he simply shook his head. “Mr. Flynn, if I could find any legal reason to deny your motion I would do so,” the judge said. “But there isn’t any and I am sworn to follow the law, even when I don’t want to.” He paused. “I am going to order a new trial for Mr. McCann.”

“Your Honor, I have a further motion,” Flynn said quickly. “I move for an order dismissing the charges against Mr. McCann. If this case were retried today it would have to result in a judgment of acquittal as soon as the state rested. Mr. McCann has always maintained his complete innocence and we have always contended that Lester Dobbs accused Mr. McCann in order to escape his just punishment for Mrs.

Alvarez’s murder. Without the testimony of Lester Dobbs there is no evidence connecting Mr. McCann to the kidnapping of Patty Alvarez.”

“Mr. Quiroz, is there an official copy of Mr. Dobbs’s trial testimony?” Judge Schrieber asked. “No, sir.” “Did Mr. Dobbs testify in the grand jury?” “Yes, but there’s no transcript.” “Even if there was,” Flynn interjected, “it wouldn’t be admissible against Mr. McCann because I had no opportunity to cross-examine Mr. Dobbs.” “I believe Mr. Flynn is correct,” the judge said. “Mr. Quiroz, is there any legally permissible way to present the testimony of Lester Dobbs to a jury in a second trial?” “Not that I can think of at this moment.”