Tommy, October 31, 2008
After their meeting with Dickerman in McGrath Hall, Tommy and Brand did not speak a word until they were in the Mercedes.
"We need his computer at home," Brand said then. "It's the only real chance we have to find the girl. I want to issue a search warrant today. And we need to interview the son pronto to see what he has to say about what was cooking between Mom and Dad."
"That's page one, Jimmy. He'll lose the election."
"So what? Just doing our jobs," said Brand.
"No, damn it," said Tommy. He stopped to gather himself. Brand had done great work here; he'd been right when Tommy was wrong. There was no reason to get angry at him for charging ahead. "I know you think this is a really bad, pathological, fucked-up guy, a serial killer who's sitting on his throne at the right hand of God, and I get it, but think. Think. You blow Rusty off the court and you're just feeding the theory of defense."
"The vengeful prosecutor crap? I told you how to deal with that."
He was referring to the DNA, testing the sperm fraction from the first trial.
"That's what we do next," said Tommy.
"I thought you don't want to get a court order."
"We don't need a court order," Tommy said.
Brand looked at the boss narrowly, then pushed the auto's start button and began easing the Mercedes into the traffic. On the street near police headquarters, six kids were being herded back to grade school after lunch by a couple of moms. Everybody was in costume. Two of the little boys were in suits and ties, wearing masks of Barack Obama.
Tommy had first thought of what he was about to explain to Brand a decade ago. In those days, he had moved back in with his mom to take care of her in the last years of her life. Her noises-the coughing from the emphysema, most often-would wake him on the cot he slept on in the dining room. Once she was settled, Tommy would think about everything that had gone wrong in his life, probably as a way to convince himself he'd be able to withstand this loss, too. He'd ponder the thousand slights and undeserved injuries he'd borne, and so he would think now and then about the Sabich trial. He knew that DNA testing would answer to everybody's satisfaction whether Rusty had been tooled or literally gotten away with murder. And he'd tempt himself with the thought of how it could be done. But in the daylight, he would warn himself off. Curiosity killed the cat. Adam, Eve, apples. Some stuff you were not meant to find out. But now he could know. Finally. He rolled out the plan again in his head one last time, then detailed it for Brand.
This state, like most states, had a law mandating the assembly of a DNA database. Genetic materials collected in any case where evidence was offered of a sexual offense were supposed to be added and profiled. Rusty had been accused only of murder, not rape, but the state's theory allowed that Carolyn might have been violated as part of the crime. The state police, without a court order or any other form of permission, could withdraw the blood standards and sperm fraction from Rusty's first trial from the police pathologist's massive refrigerator and test them tomorrow. Of course, in the real world the cops had too much trouble keeping up with the evidence being gathered today to bother going back to cases dismissed two decades ago. But the fact that the law was there and applied without time limit meant that Rusty had no legitimate expectation of privacy in the old samples. He could hoot and holler at trial if the results implicated him, but he'd get nowhere. To give them some cover, Brand could tell the evidence techs to forward all specimens from before 1988 to the state police, explaining that they wanted the oldest first to prevent further degradation.
Brand loved it. "We can do it now," he said. "Tomorrow. We can have results in a few days." He thought it through. "That's great," he said. "And if he shows up dirty, we can go for the full download, right? Search warrant for his computer? Interviews? Right? We can roll by the end of the week. We have to, right? Nobody will ever be able to say boo? That's great," said Brand. "That's great!" He threw his heavy arm around Molto and gave him a shake as he drove.
"You got it wrong, Jimmy," Tommy said quietly. "That'll be the bad news."
The chief deputy drew back. This was what Tommy had been up thinking about for several nights in the past week.
"Jimmy, we got bad news and worse news here. If," said Tommy, "if we don't match, we're screwed. Screwed. Case closed. Right?"
Brand looked at Molto without overt expression but seemed to know he was playing from behind.
"It's too thin, Jimmy. Not with the history. I just want you to understand before we go running down to the lab that it's make or break."
"Christ," said Brand. He went through all the evidence again, until Tommy interrupted.
"Jimmy, you were right all along. He's a wrong guy. But if we basically prove he didn't commit the first murder, we can't indict now. We'd just be a bunch of vengeful shits trying to recast a truth we don't like. Everything inside the courtroom and outside would be about my grand obsession. This case is paper thin. And if we have to throw in the fact that Rusty was falsely accused once before by the same office, combined with him being the chief judge of the court of appeals with everybody but God testifying as a character witness, we will never get a conviction. So we need to know what the DNA shows now. Because if it exonerates him on the first case, we're stone-cold end of the road."
Brand stared into the traffic, thickening as they passed closer to Center City. Today, Kindle County was halfway to Mardi Gras. The office workers were out for lunch in all kinds of getups. Five guys were walking along with burgers in their hands, each one dressed like a different member of the Village People.
"How's he get good DNA results into evidence?" Brand asked. "Even if the DNA cleans him up twenty years ago, so what? Okay, so we're sore losers. The prosecutors' motives are irrelevant."
"But the defendant's motives aren't. You want to put on a circumstantial case and argue the guy would risk cooling his wife? You think he's not entitled to show that he was once prosecuted for a murder he didn't commit? Doesn't that make it far less likely that he would take that kind of chance now?"
"Fuck, I don't know with this creep. Maybe it makes it more likely. Here's a guy who understands the system completely. Maybe he's clever enough to think that we can never go on him because of the first case. Maybe he thinks that DNA gives him a free shot this time."
"And he'd be right," Tommy said to Brand. At a light, they stared at each other until Brand finally broke it off to look at his watch. He swore because he was late. Molto thought of offering to park the Mercedes for him, but Jim was too upset now for jokes.
"We're gonna make him on the first case," said Brand. "I got fifty that says we make him."
"That'd be the worse news," Tommy answered. "The best thing that could happen to us would be having an excuse to walk away from this case. The really bad news will be if it turns out to be Rusty's spunk twenty years ago. Because if he was the doer, this isn't a go case. It's a gotta-go case. We can't let him sit on the supreme court knowing he's a two-time killer. We can't."
"That's what I'm telling you. But everybody will understand. They'll know we're not chasing ghosts."
"But we'll lose. That's the really, really bad news. We have a case we gotta bring that we're going to lose. Because the DNA never comes in for the prosecution. Never. It's a one-way street. He was acquitted. We can't use the old evidence against him now. It wouldn't make sense without retrying the old case, and no judge will allow that. And besides, there were so many questions about the specimen by the end of that trial, nine judges out of ten wouldn't admit it now anyway. If the DNA is good for Rusty, it sails in. And if it makes him a killer, it's out. So we've got the same thin case, even with the DNA, where we're going to have our fingers crossed that we don't get directed out on corpus delicti, because we don't have enough proof to show murder."
"No." Brand shook his head hard on his thick neck. "No way. You're laying a mattress, Boss. We all do it."
"No, Jimmy. You said it before. This guy is smart. Way smart. The bad news is that if he killed her, he thought it all through. And he figured out how to do it and walk again. And he will."
They were at the courthouse. Brand finally looked at Tommy and said, "That would be really bad news."