"Have a great day, Warren," Karp said.
"Don't look so smug," Warren grumped. "Son of a bitch."
"Warren…"
"Can't fucking prove nothin'."
Inside the Criminal Courts building the Streets of Calcutta were deserted. The eighth floor was even quieter, and there was no one in his office when he walked in. He breathed a sigh of relief. At least at the office he could get a moment's respite from the twins' haul of new Game Boys, PlayStations, and Xboxes and their never-ceasing electronic noises that he was sure had been invented to drive parents insane.
The day after Christmas had dawned bright and clear, which seemed a good thing until Karp felt the bitter cold that accompanied it as he led his clan to Rockefeller Center to skate beneath the tree.
The outing proved to be just the ticket to shake the family's melancholy over Marlene's parents and the disappearance of John Jojola. They'd gone home and feasted on leftovers from the party, then called it an early night.
Karp was already in bed when Marlene walked in from the bathroom in a new silk robe. "I just remembered," she said, "that I forgot to give you that early Christmas present."
"It's never too late," he said.
Marlene let the gown fall open. Apparently she'd spent quite a bit at Victoria's Secret. "Care to unwrap one more?" she asked.
"I think I might die…but what a way to go," he said.
"Hmmm," she murmured, stalking him across the bed like her totem mountain lion. "I suggest you lie back then and let me do all the work. I wouldn't want to overtax that poor old heart."
The next morning as he was putting on his coat to leave for work, Marlene had slipped up to him and kissed him a little longer and a little warmer than the standard good-bye buss. "I love you, Butch Karp, and don't know what I'd do without you."
"Feeling's mutual, Marlene Ciampi. And, God willing, we'll never have to find out what it means to be without each other."
Walking to work, he'd wondered why he'd added, "God willing." That wasn't the sort of thing he normally said. He'd never believed that God would react one way or another based on superstitious addenda to conversations. Must be the season, he told himself.
In his office, Karp pulled the bear fetish Jojola had given him out of his pocket and placed it on his desk. He hoped it might make him feel wise, but mostly he felt grouchy as a grizzly when he walked into the conference room a half hour later.
Kipman and Rachman were already seated on opposite ends of the table, not speaking, just staring off into space. Karp took his usual seat.
"Okay, Harry," he said. "Talk to me."
Kipman adjusted his glasses and cleared his throat but did not look at Rachman. "In light of what just occurred with the Columbia basketball players' case, I spent the weekend down here looking over the case of the People v. Alexis Michalik."
"YOU WHAT!" Rachman seethed. "What gives you the right to second-guess-"
"Actually," Kipman interrupted, "as this office's chief appellate attorney, I have the right to vet cases where I might have concerns about future grounds for appeal. And you know that. After all, better to correct a problem before it's a problem."
Rachman sputtered she was so angry. "Concerns about future appeals? You sneaky little-"
Karp rapped on the table with his knuckles. "Rachel, please, Harry does have the obligation to prereview cases that he may have to defend later." He asked Kipman to go on.
"Well, I have to say that I have some real concerns about the Michalik case."
"Oh, my God." Rachman started to say more but shut up after she looked at Karp, who gave her all the warning she needed with his legendary glare.
"For one thing, during a follow-up interview with the police, the complainant, Sarah Ryder, told a detective that when she 'woke up' from an apparently drug-induced sleep, she was naked and tied by her wrists to the legs of a couch. In that interview, she says it was at that point that Michalik removed his pants and, as she begged him to stop, he'd raped her. However, in her initial interview with the police, Ms. Ryder told the officer that Michalik was already raping her when she woke up. Nor was there any mention of attempts to dissuade the defendant."
"Please," Rachman sneered. "This is your big concern? She's mixed up about at what point Michalik actually raped her? And did you ever think that maybe the first officer didn't ask her if she'd told Michalik to stop?"
Kipman shrugged. "Perhaps, perhaps not. If I may continue…I am also wondering why we haven't heard from you, during discussions of cases in this very room, that the complainant has a mental health history that may be relevant to these allegations."
Rachman snorted. "Because it's not relevant."
"This includes having made false sexual assault allegations against another man in the past."
"A mixed-up child, angry over her parents' divorce and the mother's subsequent remarriage to a man she didn't like."
"Also, apparently Ms. Ryder used to date a member of the New York Rangers hockey club. But when he broke up with her, she attempted suicide by swallowing a jar of pills."
"A cry for help," Rachman interjected, "from a young woman who'd been led to believe this man loved her. Then when he said it was over, she gave in to despair. Is that a crime? You want to talk about something that's relevant to the case? How about an eyewitness who sees her in the building, disheveled and in tears? Then she tells him that she's been raped. Or how about the roofies in the beer glass and in her blood tests? How about the doctor who says she has injuries consistent with forced sexual contact? And the rope burns on her wrists? All of it relevant, admissible in court, and consistent with her story."
Kipman nodded. "No one disputes that there was probable cause for the arrest and that you have a strong case. And you're right, the complainant's medical history will probably…probably…not be allowed into evidence. However, it is relevant to us as we decide whether to go forward, if it is clear that this complainant lied to the investigating officers and to you."
Rachman frowned. "What do you mean she lied? About what?"
"You'll recall that during the rape examination the doctor took swab samples from her body, and the investigating officer collected her clothing to be tested for body fluids. You'll also recall that the complainant stated that she had not had any sexual relations with any other man, except the suspect, for a period of several months."
"What about it?"
"Well, the reason I asked for this meeting is that the DNA test results came in late Friday afternoon," he said. "The stain on the victim's blouse was a match for the suspect."
"You're surprised?" Rachman smiled.
"Not about that," Kipman said. "However, there was a small stain in her panties, almost too small to test, but enough. It was another semen stain…but not the defendant's."
Rachman sat silently for a moment, then slapped the table with her hand. "Doesn't matter," she said. "Her prior sexual history is not relevant."
"No, but it is relevant that she lied," Kipman said. "The defense will have copies of her statements, and they will have copies of the DNA reports. At the very least, they will have an argument in pretrial motions that if the victim lied about her sexual history, this information can be used to impeach her on the stand. It also gives them an opening to get into her mental health history, if they can demonstrate that she has established a pattern of false accusations and lies about sexual assaults."
"The shield laws would never allow it," Rachman countered.
"The shield laws are not absolute," Kipman said.
"The very reason the shield laws were created was to make inadmissible these distractions," Rachman said.
"Maybe, but the table's been set," Kipman said. "And we now have a complainant who we know has a history of making false accusations and lying. She lied about this case. It's not just a question of what we can fight in court. As Butch says, we have an obligation to prosecute only when we have a moral certainty that we are right. I think there's a real question of whether we have that moral certainty."