Playing Dead Part 11

"Maybe, but there's more than Maddox being dead."

"What? Just because O'Brien helped capture the Goethe gang, that psycho up in Montana, and a bunch of other prisoners, he's redeemed from a double-murder charge?"

"That wasn't what I was going to say, but now that you mention it, I think those actions say a lot about his character."

"What it says is...o...b..ien isn't a repeat offender. He killed in a crime of pa.s.sion. Most spouses who off their unfaithful wives aren't out to kill a half-dozen other people."

"He risked himself-his freedom and his life-staying close to San Francisco to set up Goethe's gang."

"But he's a dead man, Mitch. His date with the executioner is only weeks away. Maybe he wanted to do something n.o.ble to go out in a blaze of glory or whatever." Steve shook his head in disbelief and drank some beer.

"Put that aside for now and look at the facts of his case. O'Brien was convicted solely on circ.u.mstantial evidence."

"He had motive and opportunity," Steve countered. "That isn't circ.u.mstantial."

"Bulls.h.i.+t. A lot of people have the motive and opportunity to kill and they don't do it. Why use his personal weapon?"

"Crimes of pa.s.sion aren't well thought out."

"Did you look at the crime scene photos?"

"No. Why would I have? I'm not obsessed with this case." Steve motioned for the waitress to bring two more pints. Mitch stole a glance at his watch. 8:10. He needed to wrap this up within thirty minutes and get Steve out of here before Claire walked in and saw them talking like they were best friends. Mitch didn't want to confirm Steve's suspicions that his feelings for Claire went beyond his need to prove O'Brien innocent.

"The bodies were in bed. Taverton on top of Mrs. O'Brien. The killer walked in and shot them without hesitation. Without Taverton even having a chance to move or defend himself. That, to me, says cold-blooded premeditation."

"And a betrayed husband could have planned it just like that. What if he knew about the affair for a while? Fumed over it? Then his daughter calls and she's upset because she walked in and heard her mom in bed with a stranger. It set him off. He might have been thinking about it, maybe planning it, and now he just goes and does it."

"No rage? No yelling and fighting?"

Steve shrugged, sipped the new pint the waitress brought. Mitch tossed a twenty and a five on the tray and thanked her.

"What I'm saying," Mitch continued, "is that the police never investigated Chase Taverton's life, not in any depth. He was a prosecutor. He must have racked up a long list of enemies, and to not even walk down that road-if only to check it off the d.a.m.n list-seems not only irresponsible, but flat-out wrong. It's like they saw what they wanted to see-crime of pa.s.sion-arrested the husband, and tossed away the key."

"Usually the most obvious suspect is the killer," Steve said.

"And sometimes the obvious suspect is innocent."

"He was convicted by a jury."

"You know as well as I do that jury instructions and what is admissible and inadmissible in court holds a lot of sway over what the jury hears and thinks about a case."

"I didn't realize you were such a bleeding heart."

"It has nothing to do with that, it has to do with due process. So yes, I think O'Brien is innocent." It was the first time Mitch had admitted it aloud.

"Well."

Mitch said nothing for a long moment. "We know that Oliver Maddox was digging around in the events of fifteen years ago. And he disappeared at the same time O'Brien was moved from the safer North Seg to Section B. That tells me that someone wanted O'Brien dead, and it was only a matter of time before word that he had been a cop leaked out. A couple other facts: There were three separate attacks on O'Brien at Folsom Prison the first year he was there, even when he was in a secure section of the prison. I've asked for the records on those attacks, but so far I've been stonewalled by bureaucrats who say they don't know where they are."

"Could be the truth."

"O'Brien has never wavered from his version of the events. And one more thing: The court records are a mess. There're missing doc.u.ments, missing witness statements, missing evidence."

"O'Brien had several appeals. The doc.u.ments could have been misfiled or lost."

"True. But there's one thing that's very interesting."

"Shoot. You've piqued my interest."

"The call to the police about shots fired wasn't made to 911."

"I don't follow."

"Someone called the Sacramento PD phone number, not 911. There's no trace or tape on the main number. It goes to the receptionist. All 911 calls are automatically taped and located."

Steve thought on that. "Unusual."

"The police canva.s.sed the neighborhood and found no one who had made the call."

"Was any of that brought up at trial?"

"No. But the defense had to have known it. I'd think a cop like O'Brien would question it. His counsel sucked."

"By that, do you mean corrupt or incompetent?"

"I have no idea, but there were other minor problems. The call to the station is the biggie, though, in my mind. Steve, it's not just one thing. It's a series of problems with this case. I couldn't live with myself knowing I didn't do everything I could to make sure an innocent man doesn't die."

Anyone can convict a guilty man; it takes a brilliant prosecutor to convict an innocent man.

The voice of Mitch's father came back and Mitch swallowed the anger and disgust that arose every time he thought back to the files he'd found in his father's office after he died.

Steve stared at Mitch, his dark eyes unreadable. "Okay. You've convinced me, not of his innocence, but that maybe there's something here worth looking into. But I want your a.s.surance that you're going to be a cop first. You see Tom O'Brien, you don't let him go."

"Of course. In fact, I want to find him first. I'm worried when he's in police custody he'll end up dead. If we have him, we can protect him until we find out what Maddox had uncovered."

"And if it doesn't have anything to do with O'Brien?"

"I'll live with it."

"Good." Steve leaned back, crossed his legs. "You know, before you came to Sac two years ago you had a reputation for being a hard-a.s.s, but you're a softie at heart, Mitch. h.e.l.l, you and I both know that guys like O'Brien can crack and take the whole family with them."

"But it wasn't a murder-suicide. It was a double homicide with the daughter just down the street."

"O'Brien had a history," Steve reminded Mitch. "Written up several times, probation twice."

"For roughing up suspects."

"And that justifies it?"

"No, but the first suspect was a child molester, and the second suspect had beaten his wife to a pulp. Kicked her with steel-toed boots. She had a miscarriage and nearly died."

"So he's known to snap. What's the difference when he sees his wife in bed with another man? He snaps, has his service pistol on, shoots them."

"Without a fight or confrontation? And he didn't use his service weapon. It was his personal firearm. And it was left on the nightstand. And according to his report, the gun was found on his wife's side of the bed next to an open window."

"There were no footprints or fingerprints on or near the window," Steve said. "He could have opened the window and made it look like an intruder. Put the gun down because he heard his daughter come in."

Mitch was off and running now. "C'mon, Steve, don't you think that it's odd there were no fingerprints on the windowsill? Like it was wiped?"

"O'Brien could have easily wiped it to set up his story, or maybe his wife was one h.e.l.l of a housekeeper."

"How could O'Brien get to his gun in his night-stand-where both he and his daughter testified he kept it-without the lovers seeing him?"

"He moved it beforehand."

"That was the prosecution's argument."

"It makes sense."

"What if the killer was in the house when the wife brought in her lover? Retrieved the firearm and waited for them to get naked, then killed them?"

"O'Brien could have done the same thing. Maybe he knew about the affair, was following her, was in the house-didn't expect his daughter to come home."

"But he talked to Claire on the phone. While he was in the house killing her mother? He planned it all out, but didn't give himself an alibi? Now that is stupid. You have to look at the photos. It looks like an execution."

"The work of a cold-blooded killer," Steve countered. "A man who can kill his wife and her lover while his daughter waits for him down the street.

"The job is still the same," Steve continued. "We apprehend O'Brien and put him back in prison. We're not the judge, or the jury, or the appeals court."

"He's out of appeals."

"And the Western Innocence Project dumped his case, too. They must have realized there was nothing to it."

"And Oliver Maddox, the law student working on it, is dead and has been since before the earthquake, if the autopsy goes like I think it's going to go tomorrow," Mitch said. He sat ramrod straight, looking at his nearly empty pint of Guinness. He'd been in front of the Office of Professional Responsibility so many times it was almost a joke. Disobeying orders or not following established protocols. He had friends in high places, though they'd only protect him for so long. But every rule he broke was because he was searching for the real truth in the cases he worked. Professional? Maybe not. Responsible? Mitch didn't see any other option.

The truth may not have mattered to "Hang 'Em High" Rod Bianchi, but it mattered to his son.

Steve looked at his friend. "I agree, the way you laid it out I'd be interested in digging deeper. Okay, this is what I'll do. I'll look the other way while you play undercover neighbor with the daughter. I can't get close to her anyway, she knows I'm a Fed. I've done the routine stop-bys and talked to her a couple times. I got the impression that she wouldn't be very receptive if her father does make contact."

"I appreciate it-"

"But-" Steve interrupted. "You can't play the maverick. We're in this together or not at all. I went to the mat for you with Meg. Though I'll be d.a.m.ned if I can figure out your relations.h.i.+p with that woman. She goes ballistic when she thinks you screwed up, but then tells everyone that you're an ace investigator, one of the best."

He and Meg had always respected each other's abilities. "We've always been friends. That was sort of the problem with our marriage-we liked each other, but you know, that's not really the foundation a marriage needs." He s.h.i.+fted uncomfortably. He'd never talked about his past relations.h.i.+p with Meg to anyone, especially someone from the office.

Steve nodded. "If Meg finds out that you're that close to Claire, you'll be on a plane to Quantico before you can pack a bag."

"Fair enough." Mitch nodded. "And if we do take Tom O'Brien into custody, we keep him in our custody. No locals. Federal holding." He glanced again at his watch. 8:40.

"I think I can work that. I'll do what I can."

"That's all we both can do. Thanks."

"Now tell me the truth-why do you keep looking at your watch?"

Mitch could have lied, but after bringing Steve over to his way of thinking he needed to lay everything out on the table.

"Claire is meeting me here at nine."

Steve nodded, as if he knew the complete truth.

"Then I'd better get the h.e.l.l out of here."

Nelia was sitting at the table in the dark when Tom walked in with fast food he'd grabbed at a nearby drive-through. He put the food down and said, "Hi."

She just stared at him with her large eyes, darker in the dim artificial light filtering through the creases in the blinds.

He turned on a light and saw that her eyes were bloodshot. His stomach flipped. The last person he wanted to hurt was the woman who had saved his life, who believed in him.

"You're angry because I went to Claire's without you."

She tilted her head but remained silent.

"You're angry because I left in the first place."

Nelia dipped her head in acknowledgment.

"I'm sorry."

"No you're not."

He sat across from her. "I had to go. I had to see how Claire lived. I had to be near her."

"I understand that, but we had an agreement. You lied to me."

"I didn't lie-"

"You planned all along to go on your own. Don't make it worse by repeating the excuses you thought up on your way back here."

"You're right. But you've risked so much to help me. I can't have you risk anything more."

"That isn't your choice, is it?"

"I couldn't live with myself if you got in trouble-or hurt-because you helped me. Nelia, you have to understand that! I'm an escaped convict. They're not going to play nice if they spot me. To me or anyone with me."

"Don't think I haven't thought about it. But this is bigger than you and me, this is about the truth. I never knew the truth about what happened to Justin. Never! His killer was never caught. The police never even had a suspect. There were no similar crimes in the area, nothing in the state, nothing in the d.a.m.n country that they could find. It was as if some phantom killer walked in, killed my baby, and disappeared. I never knew why. Why Justin? Why me?"

"Nelia-"