His stomach churning, Tim recalled Kindell’s uneven voice, its lopsided cadence. Kindell had responded only when spoken to directly and when he’d been watching his questioner. Tim’s chest tightened painfully, a vise closing.
The PD turned to Judge Everston. “Mr. Kindell lost his hearing nine months ago in an industrial explosion. I have his treating physician in the hallway, who I’m prepared to call as a witness to testify that he is legally deaf, and two independent complete audiology reports showing bilateral deafness here.” He raised a manila folder, promptly scattering the papers it held, then retrieved them and handed them to the judge.
Delaney’s voice lacked its usual confidence. “Objection, Your Honor. The reports are hearsay.”
“Your Honor, as those records were produced directly to the court from USC County Medical pursuant to a subpoena duces tecum, they are exceptions to the hearsay rule as official records.”
Delaney sat down. With a stern frown, Judge Everston reviewed the file.
“Mr. Kindell is able to read lips, Your Honor, though only minimally-he’s never received professional instruction in this area. If he was being cuffed during the admonishment, he would have been facing away from Deputy Fowler’s mouth. Any questionable chance he might have had to comprehend his Miranda rights was surely eliminated. His confession was made without any clear knowledge of his rights.”
Delaney broke in. “Your Honor, if these officers made a good-fai-”
Judge Everston cut her off with a wave of her hand. “You know better than to come at me with ‘good-faith effort,’ Ms. Delaney.” Judge Everston’s mouth tightened, wrinkles ringing her lips. “If Mr. Kindell is really deaf, as counsel has indicated, there would seem to be a clear Miranda problem.”
The public defender rocked forward on his shoes. “Further, the defense requests that all physical evidence found at my client’s house be suppressed, as the search was in violation of the Fourth Amendment.”
Dray’s voice, small and strained, escaped from beneath the hand she held cupped over her mouth. “Oh, God.”
Delaney was on her feet. “Even if the defendant is legally deaf, he can still give legally binding consent to search, and the evidence should not be suppressed.”
“My client is deaf, Your Honor. How on earth could he give knowing and voluntary consent for a search-and-seizure request he didn’t even hear?”
Kindell turned, craning his neck to locate Tim and Dray. His smile was not malicious or gloating, rather the pleased grin of a child allowed to keep something he’d just stolen. Dray’s face was drawn and bloodless and, Tim was fairly certain, a match of his own.
“What other physical evidence do you have, Ms. Delaney, linking Mr. Kindell to the crime scene and the crime?” Judge Everston’s bony finger emerged from the folds of her robes, pointing at Kindell with thinly veiled disdain.
“Aside from what we recovered at his residence?” Delaney’s nostrils flared. Her skin had reddened in blotches spreading down her neck to the high reaches of her chest. “None, Your Honor.”
Something escaped Judge Everston that sounded remarkably like “Goddamnit.” She glowered at the PD. “I’m calling a half-hour recess.” She exited, taking the audiology reports with her, not seeming to notice that half the courtroom forgot to rise.
Dray leaned over as though she were going to vomit, digging her elbows into her stomach. Tim’s shock was so heightened it actually set his ears humming and pinched his vision at the sides.
The recess seemed to stretch on for decades. Delaney glanced back at them from time to time, her pen tapping nervously on her pad. Tim sat numbly until the bailiff entered and called for order.
Judge Everston hoisted her robes as she took the bench, her short stature apparent until she settled into position. She studied some papers for a few moments, as if mustering the strength to proceed. When she spoke, her tone was heavy, and Tim knew immediately she was about to impart bad news.
“There are times when our system, with its protections of individual rights, seems almost to conspire against us. Times when the ends justify the sordid means, and we must shut our eyes and take our medicine, despite the fact that we know it will kill a little part of us to serve a greater health. This is such a case. This is one of the sacrifices we make to live with liberty, and it is a sacrifice paid unjustly and by an unfortunate few.” She tilted her head regretfully toward Tim and Dray in the back row. “I cannot in good faith allow evidence which will clearly be overturned in an appellate court. As the audiology reports are unequivocal about Mr. Kindell’s bilateral deafness, it strains my credibility to believe that a deaf man with no formal training in lip-reading comprehended the intricacies of his Miranda rights or the oral consent he was asked to grant. It is not without considerable despondency that I hereby grant the motion to suppress evidence, with respect to the alleged confession and any and all physical evidence recovered from Mr. Kindell’s residence.”
Delaney shakily found her feet. Her voice quavered slightly. “Your Honor, in light of the court’s rulings suppressing the confession and the evidence, the People are unable to proceed.”
Everston spoke in a low tone of disgust. “Case dismissed.”
Kindell grinned sloppily and raised his hands for his cuffs to be removed.
10
THE rain had resumed, as if to match Tim’s mood, and around dusk it had kicked up fairy-tale strong, battering the screen doors and palm fronds in the backyard. The windows rattled from occasional thunder. Tim sat quietly on the couch, staring at the blank TV that reflected back only the raindrops streaking down the glass sliding doors to his side. Dray worked on a scrapbook at the kitchen table behind him, trimming and inserting pictures of Ginny in a fury of scissors and pages.
Moving only his thumb, Tim clicked the remote, and the picture bloomed. William Rayner, UCLA’s ubiquitous social psychologist, appeared in the left box of a split-screen news interview with KCOM’s anchor, Melissa Yueh. The live feed featured him seated in a somber library, legs crossed. His silver hair and well-manicured white mustache added to his slightly dated but handsome appearance. On the bookshelves behind him stretched rows of his latest nonfiction bestseller, When the Law Fails. A consummate performer with as many enemies as admirers, Rayner was a Men Are from Mars cultural critic, in a camp with Dominick Dunne and Gerry Spence. “…excruciating feeling of impotence when someone like Roger Kindell is not brought to justice. As you know, such cases strike a personal chord with me. When my son was murdered and his killer set free, I fell into a terrible depression.”
Yueh gazed on with an expression of fudge-thick empathy.
“And that’s when my interest veered in this direction,” Rayner continued. “I conducted countless interviews, countless studies. I began speaking to others about how they view these shortcomings in the law and about how these shortcomings undermine efficacy and fairness. Unfortunately, there are no easy solutions. But I do know that when the law fails, the very fabric of our society is threatened. If we don’t believe that the cops and courts will see to justice, what alternative does it leave us with?”
Tim pressed the remote, and the TV blinked off. He sat in silence for a few minutes, then hit the button again. Yueh had now turned her attentions to Delaney, who looked uncharacteristically flustered. Tim hit the “on/off” button again and watched the raindrop shadows play across the blank screen.
“How could Delaney not have found out the guy was deaf?” Dray said. “I mean, he was deaf. It’s not like overlooking his eye color.”
“She was working off his old case file. He wasn’t deaf then.”
Another angry snip of the scissors sent a strip of paper fluttering to the floor. “He’s been arrested four times. You don’t think he knows his rights? He’s an expert on his rights. And why didn’t Fowler wait for a warrant? What am I saying?-of course he didn’t wait for a warrant. Of course he wasn’t careful about reading the rights or getting oral consent. He never thought Kindell was going to make it to trial. The case wasn’t dismissed because Kindell was deaf-it was dismissed because the last thing on any of your minds at the crime scene was securing the arrest properly, taking things slow and right.” She slammed the scissors down on the table. “Damn that judge. She could have done something. She didn’t have to throw everything out.”