I is for INNOCENT

  "What good's it going to do?" I asked. "David Barney can't be tried again on the murder one."

  "Exactly. Which is why we kicked it over to the civil side. We've got a much better shot at him there, which he damn well knows. The guy's really dragging his feet, doing everything he can to hinder and obstruct. We file a motion. He's got thirty days to answer so his attorney – what a geek – waits until day twenty-nine and then files a demurrer. Anything to string it out. He's throwing up roadblocks left and right.

  "We bring Barney in for a deposition and he pleads the Fifth. So we take him into court and force him to testify. The judge ordersthe guy to answer because he has no Fifth Amendment rights. There's no danger of prosecution because jeopardy has attached. Back we go on the depo. So now he takes the Fifth again. We take him in on the contempt, but in the meantime we're running up against the court statute –"

  "Lonnie?" I said.

  "We're humming and humming and it's not working for us. We're coming up to the five-year statute and we really need to make the case happen. We're on the master calendar and we've been given priority, and now Morley drops dead –"

  "Looonnnnie," I sang. I raised my hand to get his attention.

  He stopped.

  "Just tell me what you need and I'll go out and get it for you."

  Lonnie laughed and tossed his pencil at me. "This is why I like her. No bullshit," he said to Voigt. He reached over and pushed the stack of, files in my direction. "This is everything we got, though it's a bit disorganized. There's an inventory on top – just make sure it's all in there somewhere before you start work. Once you're familiar with the basics, we can figure out where the gaps are. In the meantime, I want you two to get acquainted. You're going to be seeing a lot of each other in the next month."

  Voigt and I smiled politely at Lonnie without looking at one another. He didn't seem to feel any more excited about the prospects than I did.

  Chapter 2

  * * *

  I ended up staying at the office until midnight. The accumulated files on Isabelle Barney spilled over the tops of the two cardboard cartons, each of which weighed over forty pounds. I nearly developed a hernia hauling the boxes from Lonnie's office to mine. There was no way I could get through all the data at one sitting so I figured I might as well take my time. Lonnie wasn't kidding when he said the files were disorganized. According to the inventory, the first box should have contained copies of police reports, transcripts from the murder trial, the complaint Lonnie'd filed in the civil action in the Santa Teresa County Superior Court, all the demurrers, answers, and cross-complaints. I couldn't even be sure that the trial transcripts were complete. What files I could spot were lumped together in one of those annoying hodgepodges that make finding anything a chore.

  The second box supposedly contained copies of all of Morley Shine's reports, affidavits, transcripts from the numerous depositions taken, and pages of supporting documentation. Fat chance. I could see the list of witnesses that Morley had talked to – he'd been billing Lonnie on a regular monthly basis since June 1 – but not all of the corresponding written reports were in evidence. It looked like he'd served about half the subpoenas for the upcoming trial, but most of those seemed to be repeat witnesses from the criminal proceedings. Eight signed civil subpoenas, with instructions for service attached, were clipped together in a folder. I didn't see that he'd served any new witnesses... unless the yellow server's copies were filed somewhere else. From a scribbled note, I gathered that the informant's name was Curtis McIntyre, whose telephone number was a disconnect and whose last known address was no good. I made a note to myself to track him down first as per Lonnie's request.

  I leafed through page after page of interrogatories and responses, making an occasional note to myself. As with a jigsaw puzzle, what I hoped to do was to familiarize myself with the picture on the box lid and then proceed to put the pieces together one section at a time. I knew I'd be repeating some of Morley Shine's investigation, but his approach tended to be a bit ham-fisted and I thought I'd do better if I started from scratch, at least in the sensitive areas. I wasn't sure what to do about the gaps in the files. I hadn't finished going through the boxes yet and I could tell I was going to have to empty everything out and repack the data so they would match the index. Certain avenues Morley'd pursued appeared to be dead ends and could probably be eliminated unless something new cropped up. He'd probably been keeping all the current files in his office or at home, which I did myself if I was still in the process of transcribing notes.

  The bare bones of the story were much as Kenneth Voigt had indicated. Isabelle Barney died sometime between 1:00 and 2:00 a.m. on December 26 when a .38-caliber weapon was fired at point-blank range through the peephole in her front door. The ballistics expert called it "a near-contact shooting," with the hole in the door acting almost like an extension of the barrel and Isabelle's eye almost touching the door. The wood around the hole was blown out at right angles to the hole and toward Isabelle, with some fragments probably blown back toward the killer as well. In a dry parenthetical note, the ballistics expert suggested that the blast might well have forced "material" back into the barrel itself, perhaps jamming the gun, and thus making a second shot problematic, if not impossible. I skipped the rest of that paragraph.

  The muzzle flash had singed the wood inside the hole, charring it slightly. The report noted powder residue on the outside of the door around the hole, inside the hole, and also around the hole on the inside of the door. Much of the area was splintered by the gas pressure. The bird shot and the remnants of blue plastic cap removed from the wound indicated that the bullet was a Glaser Safety Slug, a light, high-velocity round consisting of bird shot suspended in a viscous medium encased in a copper jacket with a plastic nose cap. When the slug hits a medium like flesh with a high water content, the plastic cap separates, the copper jacket peels back, and the bird shot spreads out rapidly, transferring all of the energy in the slug to the flesh. Because each piece is small and of low mass, it dumps its energy quickly and stays in the body, hence the name Safety Slug. Bystanders are not endangered by an overpenetrating bullet, and since the Safety Slug also disintegrates against hard surfaces (such as skulls...), ricochets are minimized as well. No getting around it, I thought, this killer was just too considerate.

  According to the pathologist, the bullet, along with fragments of metal and wood, entered the victim's right eye. The autopsy report spelled out in highly technical detail the destruction to soft tissue left in its wake. Even with my sketchy knowledge of anatomy, it was clear death was instantaneous and therefore painless. The machinery of life had shut down long before the nervous system had a chance to register the agony such a wound would inflict.

  It's hard to have faith in your fellow man when you're forced to look at some of his handiwork. I disconnected my emotional machinery while I studied the autopsy X rays and photographs. I work best when I'm armed with an unflinching view of reality, but the detachment is not without its dangers. Unplug yourself often and you risk losing touch with your feelings altogether. There were ten color photographs, each with a nightmarish quality of violated flesh. This is what death is, I reminded myself. This is what homicide really looks like in the raw. I've met killers – soft-spoken, pleasant, and courteous – whose psychological denial is so profound that their perpetration of a killing seems inconceivable. The dead are mute, but the living still have a voice with which to protest their innocence. Often their objections are noisy and pious, impossible to refute since the one person who could condemn them has been silenced forever. The final testimony from Isabelle Barney was framed in the language of her fatal injury, a devastating portrait of waste and loss. I tucked the pictures back in the envelope and moved on to a copy of the case notes Dink Jordan had sent over to Lonnie.

  Dink's real name was Dinsmore. He referred to himself as Dennis, but nobody else did. He was in his fifties, bland and gray, a man without energy, humor, or eloquence. As a public
prosecutor he was competent, but he had no sense of theater. His delivery was so slow and so methodical it was like reading the entire Bible through a microscope. I'd once watched him lay out his closing arguments in a spectacular felony murder trial with two jurors nodding off and two more so bored they were nearly comatose.

  David Barney's attorney was a man named Herb Foss, whom I didn't know at all. Lonnie claimed he was a jerk, but you had to give him credit for getting David Barney off.

  While there had been no witnesses to the shooting and the murder weapon was never found, evidence showed that Barney had purchased a .38-caliber revolver some eight months before the murder. He claimed the gun had been removed from his bed table at some point during the Labor Day weekend, when the couple had given a large dinner party in honor of some friends from Los Angeles, Don and Julie Seeger. When he was questioned about his reasons for not filing a police report, he maintained that he'd discussed it with Isabelle, who'd been reluctant to confront her guests with the alleged theft.

  During the trial, Isabelle's sister testified that the couple had been talking for months about a separation. David Barney contended that the breach between them wasn't serious. However, the gun theft incident precipitated a quarrel, which culminated in Isabelle's ordering him to move out. There seemed to be much disagreement about the prognosis for the marriage. David Barney claimed the relationship was stable but stormy, that he and Isabelle had been in the process of negotiating their differences. Observers seemed to feel that the marriage was dead, but that might have been wishful thinking on their part.

  Whatever the truth, the situation deteriorated rapidly. David Barney moved out on September 15 and then proceeded to do everything in his power to regain Isabelle's affections. He made frequent phone calls. He sent flowers. He sent gifts. When his attentions became annoying, instead of giving her the breathing space she requested, he redoubled his efforts. He left a single red rose on the hood of her car every morning. He left jewelry on her doorstep, sent her sentimental cards in the mail. The more she rejected him, the more obsessed he became. During October and November, he called her day and night, hanging up if she answered. When she had her number changed, he managed to acquire the new unlisted number and continued phoning her at all hours. She got an answering machine. He continued to call, leaving the line open until the message tape ran out. She told friends she felt she was under siege.

  In the meantime, he leased a house in the same stylish section of Horton Ravine. If she left the house, he followed her. If she stayed home, he parked across the road and watched the house through binoculars, keeping track of visitors, repairmen, and the household help. Isabelle called the police. She filed complaints. Finally, her attorney had a restraining order issued, prohibiting phone calls, written communication, and his approach anywhere within two hundred yards of her person, her properly, or her automobile. His determination seemed to subside, but by then the harassment had taken its toll. Isabelle was terrified.

  By the time Christmas came, she was a nervous wreck, eating little, sleeping poorly, subject to anxiety, panic, and tremors. She was pale. She was haggard. She was drinking too much. She was agitated by company and frightened to be alone. She sent the four-year-old Shelby to live with her father. Ken Voigt had remarried, though some witnesses suggested that he'd never quite recovered from his divorce from her. Isabelle took tranquilizers to get through the day. At night, she popped down sleeping pills. Finally, the Seegers prevailed on her to pack her bags and accompany them on a trip to San Francisco. They were en route to Santa Teresa to pick her up when the electronic fuel injection on the car went out. They called and left a message to let her know they'd be late.

  From midnight until approximately 12:45, Isabelle, feeling anxious and excited about the trip, had a lengthy telephone conversation with a former college roommate who lived in Seattle. Some time after that, she heard a rap at the door and went downstairs, assuming the Seegers had arrived. She was fully dressed, smoking a cigarette, her suitcases already lined up in the foyer. She flipped on the porch light and put her eye to the spyhole before opening the door. Instead of seeing visitors, she was staring down the bore of the .38 that killed her. The Seegers showed up at 2:20 and realized something was wrong. They alerted Isabelle's sister, who was living in a cottage on the property. She used her key to let them in through the rear. The alarm system was still armed at the perimeter. As soon as they spotted her, the Seegers called the police. By the time the medical examiner arrived at the scene, Isabelle's body temperature had dropped to 98.1. Using the Moritz formula and adjusting for the temperature in the foyer, her body weight, clothing, and the temperature and conductivity of the marble floor on which she lay, the medical examiner placed the time of death roughly between 1:00 a.m. and 2:00 a.m.

  At noon the next day, David Barney was arrested and charged with first-degree murder, to which he entered a plea of not guilty. Even that early in the game, it was clear that the evidence against him was largely circumstantial. However, in the state of California, the two elements of a homicide – the death of the victim and the existence of "criminal agency" – may be proved circumstantially or inferentially. A finding of murder in the first degree can be sustained where no body is produced, where no direct evidence of death is produced, and where there is no confession. David Barney had signed a prenuptial agreement that limited his financial settlement if they divorced. At the same time, he was listed as the prime beneficiary on her life insurance policies, and as her widower he stood to inherit the community property portion of her business, which was estimated at two point six million bucks. David Barney had no real alibi for the time of her death. Dink Jordan felt he had more than enough evidence to convict.

  As it happened, the trial lasted three weeks, and after six hours of closing arguments and two days of deliberations, the jury voted for acquittal. David Barney walked out of the courtroom not only a free man, but very rich. Interviewed later, some jurors admitted to a strong suspicion that he'd killed her, but they hadn't been persuaded beyond a reasonable doubt. What Lonnie Kingman was attempting, by filing the wrongful death suit, was to retry the case in civil court, where the burden of proof is based on a preponderance of evidence instead of the "reasonable doubt" formula of a criminal prosecution. As I understood matters, it would still be necessary for the plaintiff, Kenneth Voigt, to establish that David Barney killed Isabelle, and, further, that the killing was felonious and intentional. But the onus would be eased by the shift to proof by preponderance. What was at stake here was not Barney's freedom, but any profits he'd garnered from the crime itself. If he'd killed her for money, at least he'd be stripped of his gains.

  I realized I was yawning for the third time in a row. My hands were filthy and I'd reached the point in my reading where my mind was wandering. Morley Shine's methodology had really been slipshod and I found myself irritated with the poor man in death. There's nothing quite as irksome as someone else's mess. I left the files where they were and locked my office door. I let myself out into the third-floor corridor and locked the door behind me.

  Mine was the only car left in the parking lot. I pulled out of the driveway and turned right, heading toward town. When I reached State Street, I hung a left and headed home, cruising through the empty, well-lighted downtown area of Santa Teresa. Most of the buildings are only two stories high, the Spanish-style architecture of the ground-hugging variety due to frequent earthquakes. In the summer of 1968, for instance, there was a swarm of sixty-six tremors, ranging in severity from 1.5 to 5.2 on the Richter scale, the latter being strong enough to slop half the water out of a swimming pool.

  I felt a surge of regret when I passed my old building at 903 State. By now, someone new had probably moved into the space. I ought to talk to Vera, the CF claims manager, to find out what had happened in the weeks since I'd been gone. I hadn't seen her since she and Neil got married on Halloween night. As a side effect of being fired, I was losing touch with a lot of people I knew – Darcy Pasc
oe, Mary Bellflower. The notion of Christmas in the new office setting seemed strange somehow.

  I narrowly missed the light at the intersection of Anaconda and 101. I came to a stop and turned my engine off, waiting the four minutes for the light to turn green again. The highway was deserted, empty lanes of asphalt stretching out in both directions. The light finally changed and I zoomed across, turning right at Cabana, the boulevard paralleling the beach. I took another right onto Bay and a left onto my street, which was narrow and treelined, mostly single-family dwellings with an occasional condo. I found a parking spot two doors away from my apartment. I locked my car and scanned the darkened neighborhood by habit. I like to be out by myself at this hour, though I try to be vigilant and exercise appropriate caution. I let myself into the side yard, lifting the gate on its hinge to avoid the squeak.

  My apartment was once a single-car garage attached to the main house by a breezeway, which had been converted to a sunroom. Both my apartment and the sunroom had been reconstructed after a bomb blast and I now had an additional loft sleeping space with a second bath built in. My outside light was on, compliments of my landlord, Henry Pitts, who never goes to bed without peering out his window to see if I'm safely home.