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Judgment Calls
by Alafair Burke
Henry Holt, 2003


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Excerpt: Chapter 1

A February morning in Portland, Oregon, and it was still dark outside when I walked into the courthouse, the air thick with the annoying drops of humidity that pass for rain in the Pacific Northwest. No surprises there. What did surprise me was finding a Police Bureau sergeant waiting in my office.

I'm a deputy district attorney for Multnomah County, making me about one percent of the office that prosecutes state crimes committed in the Portland area. Since I took this job three years ago, I've gotten used to having voice mail and e-mail messages waiting for me on Monday mornings. People just don't seem to realize that government law offices aren't open on weekends. It's unusual, though, and rarely a good sign, to find a cop waiting for you first thing in the morning.

At least I knew this one.

"Hey, Garcia, who let you in?" I said. "I thought we had some security around here."

Sergeant Tommy Garcia looked up from the Oregon State Bar magazine he had lifted out of my in-box. He smiled at me with those bright white, perfectly straight teeth that contrasted beautifully with his smooth olive skin. That smile had led me to believe he was a nice guy when I met him for the first time three years ago, and I had been right.

"Hey, Sammie, what can I say? I love reading the part at the back that tells about all the bad lawyers and what they did to get disbarred or suspended. Gives me a sense of justice. You should be careful about giving me such a hard time, though. I might start to think you're like the rest of the DAs around here, with a stick up your ass."

Tommy's in charge of the bureau's vice unit, so I know him well. As a member of the eight-lawyer team known as the Drug and Vice Division, I talk to Tommy almost weekly about pending cases and see him at least once a month at team meetings.

"You must want something from me big and bad, Garcia, to be buttering me up like that. What is it," I asked, "a warrant?" The local judges won't even read an officer's application for a search warrant unless it is reviewed and approved first by a deputy DA. In a close case, the cops tend to "DA shop."

Garcia laughed. "You're too smart, Kincaid. Nope, no warrant. I do need your help on something, but it's a little more complicated." He reached behind him to shut the door, looking at me first to make sure I didn't mind.

"MCT picked a case up over the weekend, thinking it would be an attempt murder. The suspects are bad, bad guys, Sammie. Two of them grabbed a girl out of Old Town. One of them started to rape her, but couldn't get it up, so he beat her instead, and then the second guy finished what the first couldn't. When they were done, they left her for dead out in the Columbia Gorge.

"I don't know all the details, but apparently the initial investigation was a bit of a cluster fuck. It sounds like everything's on track now, but O'Donnell was the riding DA and got pissed off at some of the early mistakes. So he's planning on kicking it into the general felony unit for prosecution. You can pretty much figure out what's gonna happen to it."

The general felony trial unit is a dumping ground for cases that aren't seen as serious. The trial DDAs often have extremely limited time to spend on them, and the overwhelming majority plead out to reduced charges and stipulated sentences during a fast-paced court calendar referred to as "morning call." It's the criminal justice system's ugly side. Tim O'Donnell was a senior DDA in the major crimes unit. If he bumped a Major Crimes Team case down to general, he knew it was gone.

"Sounds bad, but it also sounds like MCT's beef is with O'Donnell."

"Yeah, well, O'Donnell's mind's not an easy one to change, and I think there's another way to go here because of a vice angle. The victim's a thirteen-year-old prostitute named Kendra Martin. Unlike most of 'em, she doesn't try to look any older. Wears schoolgirl outfits like that one girl used to wear on MTV before she got implants and started running around naked. What's her name? My daughter likes her. Anyway, she looks her age, is my point.

"Turns out her injuries weren't as bad as they first looked, so the MCT guys know it'll be hard to get attempted murder to stick. But they kept working the case, even after they realized that they could've handed it off to precinct detectives. This case is under their skin."

Any reluctance on the part of the Major Crimes Team to hand over a case to precinct detectives was understandable. In theory, regular shift detectives are perfectly good investigators, but in reality, disappointed precinct detectives who were passed over for the elite MCT frequently drop the ball, deciding their cases must not be sufficiently "major" to warrant good investigations.

"I don't doubt their earnestness, but I still don't see why they'd come to DVD with this, let alone to me. I've never even handled an MCT case."

"They figured because of the vice connection that someone in DVD might take the case from O'Donnell and run with it on something more serious than a general felony. And I've been watching you since you got here, Kincaid. You're good, and this could be a case for you to show what you can do when given the chance."

"Don't think you can play me like that, Garcia. I know an ego stroke when I see it." Of course, recognizing the stroke for what it was didn't prevent me from succumbing to it. The truth was, he was right. I'd been eager to get my hands on a major trial. It's a no-win situation: DVD cases aren't sexy enough to prove yourself to the guys running this place, yet you're supposed to prove yourself before you can try victim cases. Garcia was dangling a way for me to beat the system.

I wasn't about to sign on for this, though, without knowing the details.

"I don't think there's much I can do about it, but I'm willing to talk. Have someone call me?" I asked.

"I can do better than that," he said. "I got two MCT detectives waiting for you down the street."

Garcia must've known he'd be able to work me. He had told Detectives Jack Walker and Raymond Johnson to wait for us at the cafeteria in the basement of the federal building. Created to provide subsidized meals to low-level government workers, the cafeteria had found a cultlike following among the city's law enforcement crowd. A three-dollar tray of grease dished out by lunch ladies in hairnets had a certain retro appeal.

I exercised some moderation and got a bowl of oatmeal while Garcia waited for his plate to be loaded up with bacon and home fries. After he'd paid for our meals, he led me to a corner table.

"Jack Walker, Raymond Johnson, this is Samantha Kincaid."

I shook their hands. Jack Walker was a beefy man in his fifties, starting to lose his hair, with a full mustache. His short-sleeved dress shirt stretched tight across his belly, the buttons pulling in front. His grip was almost painfully firm, and his palms were rough. He looked like a cop, through and through.

Johnson was a different story altogether. A tall well-built African American in his mid-thirties, Raymond Johnson looked and dressed like a GQ model. He wore a collarless shirt with a three-button charcoal suit. His hair was close-cropped, and he wore a diamond stud in his left ear. He shook my hand and held it just a little longer than necessary, which was fine with me.

"It's nice to meet you both," I said. "I've seen you around the courthouse, but I don't think we've ever actually met."

Jack Walker spoke first. "Yeah, likewise. I've been hearing a lot of good things about you from Tommy, here, and Chuck Forbes says you guys go way back."

Suddenly, Johnson's handshake made a little more sense. To say that Chuck Forbes and I go way back is to sanitize the situation considerably. I didn't think Chuck would tell all to his cop buddies, but I wouldn't be surprised if he had said something in a certain way with that grin of his that would clue a guy like Raymond Johnson in to the gist of his reminiscing.

I hoped I wasn't blushing. "Well, I don't want to disappoint you, but it's a long shot that I'll be able to help." I asked them to tell me about the case from the beginning, and Johnson took over.

"We got the call around three on Sunday morning. A group of high school kids went out near Multnomah Falls to party. They were all pretty drunk, and a couple of them hiked into the forest to get it on. The girl tripped over what she thought was a log. Turns out the log was Kendra Martin." 

He explained the facts in detail; I could see why he enjoyed a reputation among the DDAs as one of the bureau's best witnesses. "She was wearing a bra and a skirt pulled up over her hips, nothing else. No purse, no ID. Real beat up, finger marks on her neck, blood coming out of her bottom." I looked down, trying to hide my discomfort. Johnson continued. "The kids called police and medical. Looking at her, everyone assumed the worst. Her pulse was slow, she wasn't moving or talking, her face and body were covered with blood. The med techs took her straight to Emanuel Legacy, and patrol cops called in MCT. We page O'Donnell and tell him what we have, and he says we don't need a DA to come out. We don't have a suspect in custody yet, and the scene where we found the vic, even if it turns out to be the crime scene, is already fucked up by the high school kids. He tells us to keep working and to page him if we get a suspect or if anything big comes up over the weekend."

This was promising to be a long meeting if Johnson didn't speed it up, so I broke in. "How'd you guys split up the investigation?"

"Chuck and his partner, Mike Calabrese, supervised patrol in securing the scene, and Jack and I went to Emanuel to follow up with the vic. By the time we arrive, she's been there almost an hour and doing a lot better. The ER doc told us that most of the blood was from the anal tearing and a single large laceration on her face. She was out of it and had a slow pulse because she was on heroin. To be on the safe side, the doctor gave her Narcan to knock the heroin out of her system and keep her from ODing. She was bruised up pretty bad, but she was basically OK by the time we got to the hospital."

"So that's when you realized it wasn't a Major Crimes Team case after all," I said, letting them know that Garcia had already filled me in on the jurisdictional problems.

Jack Walker responded. As the senior detective he probably felt the need to justify the decision to keep the case with MCT. "Depends on how you look at it. Yeah, if patrol had known at the scene what the vic's actual injuries were, they probably wouldn't have called us out. But once we got involved, we had a teenage vic saying that a couple guys pulled her into their car and raped and beat her. She told the doc she didn't know how heroin wound up in her system; that they must have injected her during the assault without her realizing it. It looked like a straight stranger-to-stranger kidnap, doping, rape, and sod of a little girl. It didn't seem right to bump the case down to shift detectives."

"What charge did you use to hang on to the case, attempted murder?" I asked.

Walker nodded. "Yeah, we decided we had enough. Actually, it's an attempted agg, since the girl's under fourteen."

Intentionally killing a person under fourteen is aggravated murder, which can carry a death sentence. Luckily, Kendra Martin didn't die, so the defendants would at most be charged with Attempted Aggravated Murder.

"So what did you do after you decided to keep the case?" I asked.

Johnson answered. "We go in to talk to her, and I'm telling you the girl was a real piece of work, cussing us out, calling us every name in the book. Accusing us of keeping her there against her will when there was nothing wrong with her so SCF would make her go home." Runaways were notoriously distrustful of the state's Services for Children and Families department.

"She wasn't making a lot of sense, so we had to explain to her that we were there to investigate her statement to the doctor. That calmed her down a little. Still pretty bitchy, though." Johnson caught himself and looked over at Garcia for a read on his choice of words. I assured him his candor was fine and asked him to continue as I pulled a legal pad from my briefcase.

"Anyway, the vic initially said she was walking in Old Town around ten on Saturday night, on her way to Powell's Books, when Suspect One comes up from behind and pushes her into the backseat of what she called a" -- he looked down at his notebook -- "'some big, seventies, four-door, loser shit box.' Said it was a dark color. Suspect One gets in back with her while Suspect Two drives to a parking lot somewhere in southeast Portland.

"She says Suspect One acted like the one in charge. He starts getting real rough with her in the backseat, saying a lot of dirty stuff and pulling her clothes off. Thing is, right when she thinks he's about to rape her, she realizes there's nothing there. The guy can't get it up. So he just goes off and starts beating the shit out of her, then penetrates her vaginally and anally with a foreign object, she can't tell what. The doctors say it was probably some kind of stick -- they found splinters. Anyway, they left the parking lot and got onto I-84 going east. She remembers passing signs to the airport. After they stopped -- we're guessing they were out by Multnomah Falls at this point -- Suspect One tells Suspect Two to take a turn at her. She thinks he penetrated her vaginally and remembers Suspect One telling him to finish off in her mouth. Her memory of what happened toward the end was pretty hazy. She also thinks they must've taken her purse, because she had it with her when they pulled her in the car."

I felt sick. It's bad enough that people like these men walk on the same planet as the rest of us. The fact that they manage to find one another and work together is utterly terrifying.

"Could she describe the suspects?"

Ray Johnson nodded. "Nothing helpful, just that she'd know them if she saw them again. We figure its a long shot but go ahead and pull some mug shots off X-Imaging of guys on supervision for child sods and stranger-to-stranger rapes.

One of PPB's newest toys, X-Imaging is a computerized data system that stores all booking photos taken in the state. By using the computer to select booking photos corresponding to certain MOs, an officer is more likely to get a successful identification from a witness than by dumping several hundred booking photos in front of her. I could tell from Johnson's voice that in this case, the strategy had hit pay dirt.

"She's flipping through the printouts and hones right in on one guy, Frank Derringer. I swear, it was one of the best mug-shot IDs I've ever seen. I mean, you've seen how it goes; with that many pictures, most wits start to get confused. This girl is just flipping through 'em left and right and then -- bam! -- she nails it. One hundred percent certain. 'That's him,' she said. Pointed right at Derringer's mug."

Johnson was getting excited now. "We get even more worked up when we see that Derringer's the guy we pulled who was just paroled last summer on an attempted sod of a fifteen-year-old girl. Unfortunately for Derringer, this girl had just started a kick boxing class. As he was pushing her down, she popped up and landed a roundhouse kick straight to his Adam's apple and got away. He only served a year because it was an attempt, but it shows the guy's got it in him.

"We called O'Donnell at that point and told him what we had. He gives us the OK to pick up Derringer. We picked him up last night around seven. His parole officer, Dave Renshaw, went out there with us. The plan was to arrest Derringer on a parole violation for having unsupervised contact with a minor child, then write paper to search the apartment."

I interrupted. "Does Derringer have any cars registered to him?"

Johnson nodded. "That would've been too easy. We ran him. Only car registered to him is an 'eighty-two Ford Escort.  It was his associated vehicle until a couple years ago, probably when he went to the pen. Since then, it comes up as associated with one of Derringer's pals. Guy's gotten three DUIs in two years in that same car."

"You know how these guys are," Walker said. "They sell their pieces of junk to each other and never bother notifying DMV."

"So, is that all you had when you went out to the house? The victim's ID?"

Walker appeared to share my frustration. "Yeah, that's about it, but I don't know what more we could've gotten before we went out. They did a rape kit at the hospital, but, according to the victim's version, there's probably no semen to get a sample from. Derringer never did her. Even if the other guy left behind some pre-ejaculatory liquid or they get something from the oral swab, it can take about a week for a PCR analysis."

"What about blood?" If the victim drew any blood fighting, the hospital could identify the blood type in a matter of minutes.

Johnson shook his head. "Nah. The vic was too doped up to put up a fight, so she didn't have any evidence under her fingernails or draw any blood from them. We did have a couple things to corroborate her story. As luck would have it, Calabrese found the victim's purse in a trash can by the road about a half mile from where they dropped her. He and Forbes were thinking the bad guys maybe dumped the stick on the way out. Good thinking, but no luck. But finding the purse showed that Martin was remembering at least some details accurately."

My face must have revealed my skepticism. "I don't want to sound like I've made up my mind, but that's pretty weak corroboration, Detective. It just shows Kendra was robbed; it doesn't say anything about who did this to her. Were there any prints on the purse?"

"We don't know yet. We've got it down at the lab being looked at with the rest of the girl's clothes."

"OK, so what you guys are telling me is that, at least so far, this case turns entirely on Kendra Martin's identification of Derringer. Do we all agree on that?"

They all nodded.

"So when you went out to Derringer's apartment with his PO, did this case manage to get any better?"

The second the words came out, I regretted them. Seasoned cops like Jack Walker and Raymond Johnson no doubt were well aware of the differences between their approach and a district attorney's. Cops just need to make the arrest. The DA is the one who has to prove the case to a jury beyond a reasonable doubt afterward, who has to deal with a defense attorney gnawing at every argument and challenging every piece of evidence. Trying a weak case can feel like getting poked in the eye for two weeks.

Cops learn to live with the difference in perspective. But they don't like being talked down to. And I was pretty sure I had done just that.

"No confession, if that's what you're looking for. Damn it, Garcia, I thought you said this girl was willing to try a close case. We're not even done giving her the facts, and she's already shutting us down." Jack Walker was clearly pissed off.

I chalked up the "girl" comment to generational differences and swallowed my pride. No use alienating these guys over a careless comment, even one that irritated the hell out of me.

"Detective, I'm sorry if my tone suggested that I was criticizing your investigation, but to be honest I'm a little frustrated by what I am beginning to perceive as an attempt to portray the evidence as stronger than it really is. Look, if the case is a real dog, I'll figure that out, whether or not you lead it to me barking. If it's a gimme, I'll notice that too. But I want to decide on my own. With that said, I apologize for my smart-ass comment. I should have said exactly what I was thinking, and now I have. I hope you haven't made up your mind about me, just as I haven't formed a final decision about your case."

The table was quiet as Garcia and Johnson waited to see if I had managed to make things worse. Then Jack Walker shook his head and smiled. "Well, that was definitely direct. And you're right. I guess we were kind of hyping the case up a little." He glanced over at Johnson, not so much with a look of blame as like a child who pecks over at his partner-in-mischief when he realizes the teacher has figured them out but good.

Walker then looked directly at me, and I could tell we'd entered a spin-free zone. "Look, the truth is, the biggest thing we've got right now is the girl's ID of Derringer. Derringer denied everything. He says he was over at his brother's watching a basketball game and then stayed for Saturday Night Live and some beers. The brother's name is Derrick Derringer, if you can believe it. Anyway, so far Derrick's corroborating his brother, but he's got three felony convictions, so there you go."

"So did you arrest Derringer at his house?" I asked.

Walker shook his head. "Not us. Renshaw hooked Derringer up on a parole violation based on Kendra's ID and took him down to the Justice Center for booking. We figured the parole detainer would at least hold him overnight, when O'Donnell could decide what charges to file."

"And what did O'Donnell make of all this?"

Detective Walker slumped back in his chair, the excitement draining from his face. "That's where this whole thing fell apart on us. After we had Derringer hooked up, we went back to central to meet Chuck and Mike. They had finished processing the scene and were working on the warrant. Just as we're finishing up, O'Donnell shows up -- in a fucking suit -- to review the warrant. He's reading it, just nodding the whole time, not saying squat. Then he says, 'What about this girl?' So Ray and I explain how she started out like a pill but then was a complete ten on the ID. O'Donnell didn't like it; said the case rested entirely on the girl. Then he asks whether we've run her."

"You'd finished the warrant and still hadn't run her?"

Walker pursed his lips and shook his head. "I know, we fucked up. We'd been up all night, running around. We assumed she was straight up when she picked a sick fuck like Derringer. We forgot about running her. It was a rookie mistake."

Johnson continued with the bad news. When they ran the victim, they found a few runaway reports and an arrest for loitering to solicit. Worse, the cop who made the loitering pop found a syringe in the girl's purse with heroin residue on it. Furious that the detectives had miscalculated their victim, O'Donnell had tried to bully her into coming clean, but his tough approach only made her dig her heels in deeper. Walker had to smooth things over with her, and she eventually admitted to a nine-month heroin habit that she worked the streets to support.

"So it's basically a trick gone bad?" I asked.

"No," Walker said. "At least we don't think so. She admits she was walking Old Town, looking for a trick. She'd just finished one up and had scored some horse on the street. She figured she'd keep working while she was high. Anyway, these two guys pull up and offer her fifty bucks if they can high-five her."

"OK, I've been working vice a few years now, but I still don't know what a high five is."

I knew it had to be bad when Walker and Johnson looked to Garcia for help and raised their eyebrows. Garcia averted his eyes while he told me. "It's when a girl gets on all fours and one guy does her from behind while she blows the other one." I was about to ask why the hell it was called a high five until I got a mental image of two naked guys on their knees giving each other a high five.

I rolled my eyes in disgust. "So they ask her to work for both of them, basically, and she goes with them?"

Walker eagerly accepted the invitation to change the subject. "Not according to her. She says she told them to meet her in the parking lot of the motel at Third and Alder. She rents a room there when she works. She assumes they've got a deal and starts walking to the hotel. That's when Derringer puts her into the backseat.

'The rest of it happened pretty much like she said originally. When the car was stopped and Derringer was undoing his pants, she tried getting out but the guy in front pushed her back in. They told her she wasn't going anywhere and she may as well shoot up what was left in her purse, so she did. Thing is, she says it never dawned on her they were gonna kill her until Derringer started to choke her out. But, my thinking is, she knew it at some level when they pulled her back into the car. She was just trying to get it over with. She said she injected so much horse, the assault didn't hurt that bad, and this guy really worked her over."

Ray Johnson shook his head. "Man, you should've seen O'Donnell. I don't know if you guys are tight, but he can be one tight-sphinctered prick. He got all moralistic and lectured the entire team about our obligation to be 'cautious wielding the stem hand of the law.' " Johnson's nerdy white guy impersonation pretty much nailed Tim O'Donnell.

"Anyway, it was bullshit," he continued. "O'Donnell had us clean up the warrant to include the new information and then signed off on it, saying he was gonna kick it out of major crimes territory if we didn't find anything that changed his mind. We found some porn, but nothing damning. So, he's planning on filing it today as an Assault Three and assigning it to precinct detectives for general follow-up before grand jury."

I couldn't believe it. All you had to prove for assault in the third degree was that two or more defendants acted together to injure another person. It didn't begin to portray the savage acts that had been committed against Kendra Martin.

"Assault Three? That's it?" I said.

Johnson nodded. "I know, ridiculous. He says the ID's weak, plus the defense can say the whole thing was a consensual trick, that the girl cried rape so her mom wouldn't find out she was turning tricks for smack. Said he was only issuing the assault because of Derringer's prior. He basically called the girl a piece of trash."

"And you guys don't think she is. You think she's telling the truth?"

Walker looked at me and tilted his head slightly. "Ms. Kincaid, I really do. It's almost in her favor that she lied to us at first. Shows she still knows that working's shameful, not just a matter-of-fact thing to her. Maybe that logic doesn't make any sense to you, but I think she's basically still a pretty good kid. We pissed O'Donnell off by not reading the case right, but he's taking it out on the case, and this Derringer dirtbag is going to get the benefit."

"I agree that Derringer needs to be done, but I'm not sure how I can help you."

I wasn't surprised that Sergeant Garcia had a suggestion. He had the respect of his fellow officers because he was a smart cop and a good guy. In a bureau where most black and Latino officers stall out at the front line of street-level enforcement, administrative staff promoted him because he had a political savvy so smooth that its targets never even knew they'd been had.

"The way I see it, this girl could be a good link for Vice. She's young and probably knows a circle of working girls we don't have access to. If we can earn her trust, she might be able to lead us to some of the pimps we haven't been able to latch on to, the guys who are turning out the real young ones.

"I'll call O'Donnell like I don't know much about the case but think it might have potential with Vice, then ask if he minds me getting MCT's OK to approach the vic as a potential informant. At that point I can sell him on letting a DVD attorney take the case, so they have a head start if the vic winds up developing other contacts for us. And then I'll seal the deal. 'Unless,' I'll say, 'you want to keep the case yourself and help me flip any vice contacts I work.' "

Johnson was impressed. "Tommy, my man, you oughta run for president. That is slick. You in, Kincaid?"

"I don't mind taking the case, but here's the problem: it still needs major help. The rape kit's not back, the victim's clothes are still at the lab, Derringer's alibi needs work, and we still don't have the driver. If this case is filed as an Assault Three, it's outside MCT jurisdiction. You know the precinct detectives aren't going to do the follow-up that's needed."

Garcia was a step ahead of me. "I'll make another call to O'Donnell, telling him that you want to file the case as a major crime so MCT can keep working on it, but that MCT understands it might get bumped back down later on."

I hate this kind of crap. The four people at the table agree what needs to happen and are willing to put in the work, but have to plot how they can even start without bruising a fragile ego.

I was skeptical. Garcia was good, but I still thought O'Donnell might see right through it and blame me when he wound up looking like a chicken shit. It would have been so easy to blame O'Donnell for the bad decision and say there was nothing I could do.

Apathy is grossly undervalued and never there for me when I need it. I was already sucked in. I'd broken up some escort services and prosecuted a few pimps, but I'd never had a chance to handle a case like this one. And, to my mind, with scum like Derringer, it was better to issue the case and lose than let him walk away up front.

"Alright, let's give it a try," I said.

Excerpted from Judgment Calls by Alafair Burke. Copyright © 2003 by Alafair Burke. All rights reserved. Posted with permission of the publisher. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.











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