What must he do now? Of course, he had no choice. Despite all of his pity for Cynthia, his compassion for her suffering, and even understanding the hatred she had felt toward her parents, he could never, ever, condone their murder; and what he had to do as at this moment he would do, though with pain and sorrow.
There was one thing, though amid all the conflicts and emotions that he knew for sure.
A year and a half ago, at a time of great personal distress that Malcolm's work in Homicide had caused him, Karen had asked him, "Oh, sweetheart, how much more can you take?" And he had answered, "Not too many like tonight."
That answer had been an equivocation, and both knew it. Now he had another, different answer, and he would tell Karen before the ending of this day. It was, Dearest, I've had enough. This will be the last.
But for the moment Ainslie focused on answering Adele Montesino's question: Will you tell us, please, how you were first involved . . .
* * *
"I was in charge of a task force investigating a series of apparent serial killings."
"And did the Ernsts appear to be victims of the same serial killer?''
"Initially, yes."
"And later?"
''Serious doubts arose."
"Will you explain those doubts?''
"Those of us investigating the case began to think that whoever killed the Ernsts had tried to make their deaths appear to be one more killing in the series we were investigating, though in the end it didn't work."
"A moment ago, Sergeant, you referred to 'those of us investigating the case.' Isn't it true that you, initially, were the only detective who believed the Ernst murders were not serial killings?"
"Yes, ma'am."
"I didn't want you to get away with too much modesty." Montesino smiled, and some of the jurors with her.
"Is it also true, Sergeant Ainslie, that a pre-execution interview you had with Elroy Doil, an admitted serial killer, suggested that the Ernst murders were not serial killings, and that afterward you followed an investigative trail that caused you to decide Cynthia Ernst had planned them and retained a paid killer?"
Ainslie was shocked. "Well, that's passing over an awful lot of "
"Sergeant!" Montesino cut him off. "Please answer my question with a simple yes or no. I think you heard it, but if you wish, the stenographer can read it back.''
He shook his head. "I heard it."
"And the answer?"
Ainslie said uncomfortably, "Yes."
He knew the question was flagrantly leading; it skirted facts, and was unfair to the accused. At a regular trial, defense counsel would have leapt up with an objection, which any judge would have sustained. But at a grand jury hearing there could be no objections because no defense counsel was allowed, or a defendant, either. In fact, so far as anyone knew, the accused Cynthia Ernst was entirely unaware of what was taking place.
Something else: In front of grand juries, prosecutors presented as much or as little evidence as they chose, usually disclosing the least amount they had to. They also used devices as Montesino was clearly doing to speed things along when they were confident of getting an indictment anyway.
Ainslie, who had testified before other grand juries, increasingly disliked the experience and knew that many more police officers felt the same way, believing the grand jury system was one-sided and contrary to evenhanded justice.
* * *
As a scholar with wide interests, Ainslie knew the system's history that grand juries originated in medieval England around the year 1200, when such juries accused those suspected of crimes and then tried them. During succeeding years the two functions were separated, and grand juries became "inquisitorial and accusatorial" only. Britain, after more than seven centuries, abolished grand juries in 1933, believing them incongruous in modern law. The United States retained them, though criticisms made it likely that eventually perhaps in the century soon to come the British example would be followed.
A problem with American grand juries was their secrecy, which permitted inconsistencies and barred even local supervision to a point where one legal critic described a grand jury as "a body of semi-informed laymen exempt from technical rules."
Some states had largely eliminated grand juries Pennsylvania and Oklahoma were examples; a few states nowadays allowed defendants and defense attorneys to be present. Only thirteen states required a grand jury indictment for all felony prosecutions; thirty-five did not. Several states advised jurors against accepting hearsay evidence; two examples were New York and Mississippi. Others allowed it, including Florida, which permitted hearsay evidence if given by an investigator. The list of inconsistencies and inevitable injustices was complex and long.
Some United States lawyers felt that grand jury procedures were still disconcertingly close to the Salem witch trials of 1692 though usually not prosecutors.
* * *
Even with Adele Montesino's shortcuts, a succession of witnesses and questioning continued for two hours. Malcolm Ainslie, after nearly an hour on the stand, had been dismissed and sent from the room, though instructed to stand by because his testimony would be needed again. He was not allowed to hear other witnesses; no one other than jurors or court of ficials ever attended a full grand jury performance.
For the principal murder-one accusation, the subject of motive Cynthia's lifelong hatred of her parents was addressed by Detective Ruby Bowe, who, smartly attired in a beige suit, was responsive to questions, and articulate.
Bowe described her discovery of Eleanor Ernst's secret diaries, though Adele Montesino's questioning stopped before reaching Cynthia's pregnancy. Instead, at the prompting of Montesino, who had clearly familiarized herself with the diaries' clarified version, Bowe jumped ahead, reading aloud the diary entry that began, I've caught Cynthia looking at us sometimes. I believe a fierce hatred for us both is there, and concluded, Sometimes I think she's planning something for us, some kind of revenge, and I'm afraid. Cynthia is very clever, more clever than us both.
Bowe had expected the questioning would return to Cynthia's pregnancy and childbearing, but Montesino concluded, "Thank you, Detective. That is all."
Afterward, when Ruby Bowe discussed the omission with Ainslie, he said wryly, "Bringing out the pregnancy by her father might have created too much sympathy for Cynthia. If you're a prosecutor you can't let that happen.''
Setting the stage for the tape recording, the state attorney called as a witness Julio Verona, the Police Department's ID chief. After establishing his qualifications, Montesino proceeded. "I believe that the recording this grand jury is about to hear was subjected to tests to establish that the voices on it are indeed those of Cynthia Ernst and Patrick Jensen. Is that correct?"
"Yes, it is."
"Please describe the tests and your conclusion."
"In our own police records we already had recordings of Commissioner Ernst when she was a police officer, and of Mr. Jensen, who was once questioned in connection with another case. Those were compared with the recording you have just referred to." Verona described the technical tests on specialized acoustic equipment, then concluded, "The two voices are identical on both recordings."
"And now we'll play the recording that is part of the evidence in this case," Montesino told the grand jury. "Please listen carefully, though if there's anything you miss and want to hear again, we can play it as many times as you wish."