“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 documents, missing witness statements, missing evidence.”
“O’Brien had several appeals. The documents 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 canvassed 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 assurance 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-ass, but you’re a softie at heart, Mitch. Hell, 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 hell 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 damned if I can figure out your relationship 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 shifted uncomfortably. He’d never talked about his past relationship 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.”