"Ramon told me what you're trying to do, Flynn."
"I'm trying to do my job, Martin. This isn't personal."
"It's personal to me," Alvarez said in a chilling tone. "Your client is safer in jail, safer on death row, than he'll be if he walks out of this courthouse."
"Martin, this is not the way," Flynn said in a conciliatory tone.
"McCann killed my wife. If the law doesn't punish him I won't wait to find out if God will. Let him know that."
"You're asking for a new trial, Mr. Flynn?" Judge Schrieber said. He had read Flynn's motion and the memorandum of law in support of it and he looked very troubled.
"Yes, Your Honor. My memo sets out the relevant cases and statutes. Read together, they hold that you must order a new trial if an appeal can't be prosecuted because the reporter's notes have been lost or destroyed through no fault of the defendant, every reasonable effort has been made to find a substitute for the missing record, and the defendant has made a prima facie showing of error or unfairness in the trial.
"I've submitted a list of potential trial errors that I would have asserted as bases for reversal on appeal. There is no substitute for the missing record of Mr. McCann's trial. The police have made every reasonable effort to recover it and the record is missing through no fault of Mr. McCann."
"What do you say to Mr. Flynn's argument, Mr. Quiroz?" the judge asked.
Ramon rose slowly, as if trying to delay the inevitable.
"I agree that Mr. Flynn has raised several issues that could lead to reversal, though I don't think they actually would."
"But that's not the test, is it?" Judge Schrieber asked. "He doesn't have to prove he would win. You aren't asserting that?"
"No. I agree that Mr. McCann has met the test of making his prima facie case on the possibility of error in the trial. I don't agree on much else, though. For instance, the police have searched pretty thoroughly, but they're not through looking. I think the court should give them more time."
"Where are they going to look, Your Honor?" Flynn asked. "They searched both of Mr. Arnold's residences, Mrs. Arnold's car, her office, his office. This appeal has to be prosecuted quickly. We can't wait indefinitely in the hopes that years from now the transcription tapes may show up."
"Mr. Quiroz," the judge asked, "do you have anything more than wishful thinking that leads you to believe that the lost record in this case will soon be recovered?"
Ramon shook his head. "No, Your Honor, I don't. I just feel that it's too soon to give up."
"Is there a substitute for the missing record?"
"No, Your Honor. None that I know of. It seems that the notes and backup disks for every case that Mrs. Arnold had on appeal were with her when she was abducted and there are no copies."
"If that's so, and you have no real hope of finding the originals, and the defendant had made a prima facie case for the possibility of reversal, what choice do I have except to grant this motion for a new trial?"
"We would argue that Mr. McCann is at fault here. How do we know that he wasn't involved in the kidnapping of Mrs. Arnold?"
"Your Honor," Flynn retorted, "this is an argument that grows out of sheer desperation. Mr. Quiroz prepared the warrant that led to the arrest of Gene Arnold for his wife's murder. There has never been a hint of a suggestion that Mr. McCann, who was in jail at all times relevant to the Arnold case, had anything to do with the second kidnapping."
"Mr. Quiroz?" the judge asked.
Ramon knew when he was whipped and he simply shook his head.
"Mr. Flynn, if I could find any legal reason to deny your motion I would do so," the judge said. "But there isn't any and I am sworn to follow the law, even when I don't want to." He paused. "I am going to order a new trial for Mr. McCann."
"Your Honor, I have a further motion," Flynn said quickly. "I move for an order dismissing the charges against Mr. McCann. If this case were retried today it would have to result in a judgment of acquittal as soon as the state rested. Mr. McCann has always maintained his complete innocence and we have always contended that Lester Dobbs accused Mr. McCann in order to escape his just punishment for Mrs. Alvarez's murder. Without the testimony of Lester Dobbs there is no evidence connecting Mr. McCann to the kidnapping of Patty Alvarez."
"Mr. Quiroz, is there an official copy of Mr. Dobbs's trial testimony?" Judge Schrieber asked.
"No, sir."
"Did Mr. Dobbs testify in the grand jury?"
"Yes, but there's no transcript."
"Even if there was," Flynn interjected, "it wouldn't be admissible against Mr. McCann because I had no opportunity to cross-examine Mr. Dobbs."
"I believe Mr. Flynn is correct," the judge said. "Mr. Quiroz, is there any legally permissible way to present the testimony of Lester Dobbs to a jury in a second trial?"
"Not that I can think of at this moment."
Judge Schrieber was lost in thought. He tapped his pen against the dais. When he spoke he looked very unhappy.
"Mr. Flynn, I am not going to dismiss the charges against Mr. McCann today. New evidence may be discovered. However, I am very reluctant to keep Mr. McCann in jail under the current circumstances.
"Mr. Quiroz, I am going to give you one week to convince me that there is a legal basis for keeping Mr. McCann in jail. If you can't, I'm going to be forced to set him free."
_ _ _
When Ramon Quiroz returned to the district attorney's office he found a furious Martin Alvarez waiting for him.
"What are you going to do about this?"
"There's nothing I can do, Martin. Unless we find new evidence, McCann is going to walk."
"That's insane."
Quiroz shook his head. "That's the law."
"There's got to be something you can do."
"Martin, I've been dreading this since I learned that Melissa's notes disappeared. I once went through something just like it with Gene Arnold and I knew what could happen. I was hoping that Flynn wasn't sharp enough to figure out what to do."
"What do you mean you went through something like this with Gene?"
"Remember when Bob Champion and Gene were partners?"
Martin nodded.
"Bob represented some young kid charged with auto theft. They picked the jury and the state put on some witnesses. There was a three-day weekend because of a national holiday. When the trial started again no one could find the kid. He just took off. Judge Milbrandt decided that the defendant's failure to appear was willful and ordered the lawyers to go on with the trial in his absence. The jury found the defendant guilty. The judge couldn't sentence him unless he was present, so he issued an arrest warrant.
"Three years ago they caught the kid in Canada. He was sent back for sentencing. Bob had retired by this time and Gene filed a notice of appeal, but the court reporter couldn't find her notes. They were in a box of old transcription tapes that she'd destroyed. Gene couldn't appeal because there wasn't any way to prepare the transcript without the notes, but he found that statute Flynn cited and the court had to order a new trial."
Martin left the DA's office. As he drove home he remembered that Joan McCann was Gene Arnold's legal secretary. If she knew about the auto theft case, she would also know that Judge Schrieber would have to order a new trial for Paul if Melissa's notes were lost. Did Joan love her husband enough to kill Melissa Arnold and Lester Dobbs? Was the ransom demand merely a smoke screen that had hidden a plot to free Paul McCann from prison? Was she capable of committing a double murder?
Martin tried to remember everything he knew about Joan McCann. She had exhibited signs of tremendous stress lately. Martin had assumed that she was worrying about her husband's fate, but what if her gnawed nails and weight loss had been physical manifestations of unbearable guilt.
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