Sealing Fate Page 18

  “And you will face new charges if this court's order is violated in any respect.”

  “Yes, Your Honor,” Barbara said meekly, nodding to convey her intended compliance.

  Judge Byers looked to Garrett and then Lloyd and finally said, “Good day, gentlemen. See you in four weeks.”

  Papers were gathered, and briefcases snapped shut. Brian stood, wanting out of the courtroom before the judge had second thoughts.

  They had prepared for bail in advance but had not counted on it in view of Lloyd's repeated warnings that his motion for release on bail may or may not be granted. The bond was posted, and Barbara walked out into the afternoon sunshine within three hours after Judge Byers ruled on the motion.

  Lloyd waited with Brian until Barbara emerged in street clothes, in the company of a female sheriff's deputy, who shook Barbara's hand and wished her well before turning to go.

  “Thank you, Lloyd,” Barbara said softly, extending a hand to him.

  Lloyd nodded and took her hand. “I'll get back to you as soon as I have the opportunity to talk further with the DA concerning the specifics of a plea involving counseling and time at a private clinic.” He fixed his gaze on Barbara in a way that suggested to Brian he was assessing her mental or emotional state.

  She conveyed no emotion but said, “Thank you. I appreciate all you've done.” She turned and walked away.

  Brian and Lloyd exchanged a look of concern, and Brian followed her.

  In the car as Brian drove toward home, Barbara was silent. Her gaze was fixed, seemingly on the road in front of her, but Brian doubted her focus was external.

  “You all right?” he asked.

  Barbara nodded slowly, remaining silent. After a few moments she spoke, almost in a whisper, “I could get the death penalty, you know?”

  Brian recoiled at the words. “No,” he said without doubt in his voice. “Lloyd Martin says that won't happen.”

  As he spoke, he acknowledged to himself that it was a possibility, though an outside one. He looked over at her, but she did not respond. She seemed to be somewhere far away.

  When they got home, Barbara excused herself and went upstairs to rest. Brian poured himself a bourbon and water, went into his study, and sat down behind his computer. He struck a few keys and was soon online, searching through recent decisions on Lexis. He called up cases by keying in “murder,” “manslaughter,” “heat of passion,” “mitigation,” and “diminished capacity” in California appellate courts.

  When the search yielded 143,000 matches, he began to fashion search words to narrow the focus. He knew the process would be a long one, but it was this or sit around and feel helpless. He hoped to find case law to support the diminished capacity plea and favor treatment rather than incarceration. He thought about Barbara's expression as she stared vacantly and sadly into nothingness on the journey back from the courthouse, downed the remainder of his bourbon, and turned his attention back to the monitor and the 6,305 matches generated by his last search. Brian struck at the keyboard as he thought of a way to further narrow his search.

  As Brian read excerpts of cases that caught his eye, he noted the prompt return of his ability to analyze cases, a skill that he thought would be stale in the wake of his career change from the practice of law to politics. Just like riding a bicycle, he told himself, as he scanned the head notes of eighty-eight cases in which diminished capacity defenses had been accepted in connection with homicides and batteries in the heat of passion. There had to be something here that would favorably lend itself to analysis of the circumstances under which Barbara had killed Michael Hayward and participated in the killing of Cathy Jenkins.

  As he thought again of Barbara's participation in Cathy's murder, a deep chill ran over his spine, followed by a wave of anger. As the moments passed, he realized he was staring into space, and he was shocked to discover that tears were in his eyes. He found himself thinking of Cathy's free spirit and the impromptu trip to the beach in suits on a workday morning. His thoughts suddenly turned to Barbara following them and then to her and Michael Hayward plotting Cathy's killing. He felt a deep and heavy sensation of sadness wash over him, and he leaned back in his chair. He began wringing his hands and closing his eyes tightly. He told himself that he couldn't fall apart. He had to keep going. He pushed the water from his eyes and returned his energy to reading cases. All else would have to wait.

  By six in the morning, Brian had found a dozen key cases that he thought would assist Lloyd in making a diminished capacity argument and others that would mitigate in favor of reduced sentences. He had found three times that number that would hurt rather than help, and while he printed all of the cases, he put the negative cases in a different file than the one intended for Lloyd. He would Shepardize the bad ones later, a process used to track the subsequent history of the decisions, in hopes that later appellate cases had reversed or distinguished some of the bad decisions.

  Brian picked up the morning paper and scanned for articles about Barbara, himself, Michael Hayward, and Cathy Jenkins, a process that had become a morning ritual. On page two, he found an article “How Tangled the Web—-the Fate of a National Figure.” The article recounted the death of Cathy Jenkins, long thought to be a break-in gone wrong, her later suspected relationship with Brian Madsen, and the conspiratorial plans of Barbara Madsen and the now-deceased Michael Hayward, allegedly murdered by his co-conspirator in cold blood.

  The article contained quotes from Carol Hayward, grieving spouse and angry victim, seeking justice done against the woman who had murdered her husband. She announced that she would be present at every pretrial motion and hearing and for the full length of the trial. She “lived for” her chance to testify in the sentencing phase of the trial. She expressed anger and regret that Judge Byers had set such a woman free on bail and hoped this judge would not further impede justice.

  This woman was ready to fire up a lynch mob, Brian reflected. There was then a reference to a related article examining what it referred to as the now “well-established rights of victims and survivors” to be heard in the sentencing phases of trials and the degree of the loss they describe taken into account by the trial judge to increase the sentence.

  There were additional quotes of Carol Hayward and her commitment to testify against Barbara Madsen at every opportunity. The piece concluded with a statement that legal experts believed that the tormented testimony of widows and orphans greatly increased the prosecution's odds of a death penalty result.

  “Odds,” Brian said aloud, throwing the paper down on the kitchen table.

  It was as if these so-called legal experts were speaking of a game of craps rather than someone's life, the latest window in the Vegas sports book. Five to three said she got the death penalty.

  Brian rubbed his eyes with the heels of his palms, trying to shake the exhaustion that had a hold of him. The daily articles portraying Barbara as the female counterpart of O. J. Simpson—pathological, slick, and guilty—was poisoning the well of public opinion. The newspapers were actually taking polls from the potential jury pool at large, and 80 percent were leaning toward the death penalty for this total stranger, who had never said a word in her own defense and who would not be permitted to do so by her lawyers. The press was selling newspapers by making her the equivalent of Orwell's Goldstein in 1984, the root of all evil, the source of all misfortune. Is something going wrong in your life? It probably connects to Barbara Madsen.

  Brian spent the next two days turning it over in his mind, frequently returning to thoughts that his straying had done it all, and then forcing himself back on task, racking his brain for something he could do to give Barbara a fighting chance. It suddenly occurred to him that, with a little influence of his own, maybe there was a way to level the playing field. Brian walked to his office and sat down at his desk. He opened his address book, picked up the phone, and punched in the private number of James Francis Orson, friend and confidante to presidents and kings.

 
On the second ring, it was answered, “Hello.”

  “Is this Jim Orson?” Brian asked tentatively.

  “It is.” He cleared his throat and then said, “And this would be Congressman Brian Madsen.”

  The immediate recognition stunned Brian. He had not spoken to Orson since the inaugural. For a moment, he thought about caller identification, but he blocked caller identification, so the entry should say nothing more than “private caller.”

  “Hello … How did you know who it was?” Brian asked awkwardly.

  “I have a good memory for faces and voices. Not that I need it. Yours is spread all over the place these days. I know you're not talking to the media about the, shall we say, critical events, but as you are news, the networks have been running every speech and interview you've ever done. Brian Madsen sound bites are everywhere, and your voice is known to everyone who listens to the radio or watches the eleven o'clock news.” He paused for a moment and then added, “And I've been figuring that I might hear from you.”

  “You have?” Brian asked. The surprise was evident in his voice.

  “The night of your inaugural wingding, while Sean Gilmore was mugging for the camera, I told you to talk to me if you needed anything. Well …” He drew out the word as if holding a musical note. “Ain't many folks more in need of help at the moment.”

  “I see,” Brian said, feeling uncomfortably transparent.

  “Don't worry though, Congressman. If there's one thing I do well, it's keep a confidence.”

  “Thank you, Jim. I do appreciate that.”

  “Now,” Orson continued as if Brian hadn't spoken, “if I'm correct—-and you tell me if I am correct—-you would like to know if I can help your wife given her current …” He paused as if groping for a word. “Situation. Admirable, Congressman. Quite admirable.”

  Brian was squirming uncomfortably in his chair but said only, “Please call me Brian.”

  “Right, Brian.” Orson drew an audible breath and then said, “This is a hard one, Brian. Influencing the way a criminal prosecution goes down or what sentences are handed out is tough anyway. Particularly so when it's so much in the public eye. These events are selling papers nationally, and it looks like people are going to keep watching this one 'til the fat lady sings. You with me?”

  Brian felt deflated and couldn't think of much to say. “Yes, I'm with you. I appreciate you being aware and interested.” He closed his eyes in resignation. “I knew that you probably wouldn't be able to help, but I appreciate your understanding.”

  “I didn't say there's no way to help, just that it's a tough one. I'll take a run at it and call you later.”

  “Really?” Brian regained a little hope.

  “I'll call you soon,” Orson said.

  Brian heard a click. He leaned back in his chair and closed his eyes, wondering who Orson would call or what favors he might call in to make something happen. And wouldn't Brian owe him as much or more than any of them if he could make something happen to help Barbara?

  Brian opened his eyes, and Barbara was standing in front of him with a faraway look in her eyes. She sat down in one of two chairs on the other side of his desk and looked at him with the eyes of one caught up in sorrow.

  Barbara spoke slowly, “I've been thinking that maybe I should go somewhere.” She searched his face.

  He looked at her in silence, trying to place the statement in context, hoping that she wasn't about to tell him that she was going to skip bail.

  She didn't wait for him to speak. “I was thinking maybe Rio De Janeiro, Nicaragua, or Australia.”

  “Australia?” Brian repeated, focusing on the one that didn't seem to belong. “You know something about those places?”

  She nodded. “Some countries aren't as extradition friendly as others. Anyway, I've been doing a little online research, and those are a few that surface as possibilities.” It conjured up images of an AOL icon labeled “fugitive favorites.”

  Barbara continued, “I mean, I may not do it if things go well, but you've seen the papers. I'm as good as convicted.”

  Brian wasn't sure how to respond. He had seen the papers every day. The walls between them were high, and since all of this, their conversations had been about Barbara's defense or just superficial exchanges. Now she had cut to the chase with one sentence, and he didn't know what to say to her. It struck him that, on some level, he still cared about her and her well-being. It also struck him that he had no thought of loss associated with her possible disappearance. He just wanted to help her, anyway he could.

  “You can't do it,” he heard himself saying. “How long can you live in hiding? In disguise in some unfamiliar culture? They will get you, and then the chances of parole are gone.”

  After a few moments of silence, she nodded acknowledgment and then said, “You're probably right. I just feel so trapped. Like a caged animal.” She stood up and walked to the door. Then she turned back and looked at him with a smile. “I'll hang on. Thanks for helping me through this. I know you can't love me anymore, and that's really the worst of it all.”

  Brian could find no words. She stopped and pushed a tear from her eye. “I just wanted to keep you.” She didn't wait to see the sadness that overcame his expression, but she quickly turned and walked from the room.

  The following morning, Barbara and Brian had coffee together, and Brian told her of the more helpful cases his research had produced. She listened silently, sipping her coffee and occasionally nodding without enthusiasm. As Brian explained a manslaughter result in a case with some similarities, the phone rang.

  Barbara ran to pick it up. “Hello,” she said with rare enthusiasm. She squeezed the phone tightly. “Yes, Lloyd, I was hoping it was you. What happened?” Her face was alight with anticipation. Over the ensuing moments of silence, he saw the deflation in her expression and then resignation as she stared straight ahead at the wall.” After several minutes, she spoke softly, “I see.” There was another silence. “Yes, I understand. Thanks.” She slowly moved the phone back to its cradle without looking down.

  Brian waited, but when she remained quiet, he asked, “What did he say?”

  She looked at him and forced a sad smile. “He said no deals. Everything has changed with the DA. Too much publicity and too political. He said they want the death penalty for each of the killings.” She shook her head. “What do they want? Do they want to execute me twice?” She walked to the kitchen table and sat down next to him. “I'm really scared,” she said, rocking back and forth in the chair.

  Brian leaned over and put his arms around her, convinced that his efforts were in vain, as there was no comfort to be found for either of them.

  It was ten in the evening when the phone rang, startling Brian. He had been intently studying the Oregon Supreme Court's affirmation of a case that had denied a diminished capacity defense to a woman who had killed her husband. The facts were uncomfortably close.

  “Hello,” Brian said, his mind still processing the appellate decision.

  “Hello, Brian. This is Jim Orson.”

  The name immediately pulled Brian from his preoccupation. “Jim, hello. Good to hear from you.” Brian's heart raced.

  “I've been reviewing the problem since we spoke a few days ago,” Orson said. “It's going to be very difficult to do much because we have all the wrong elements, including a hungry and political DA, an out-of-control public interest factor, a widow who can hardly wait to testify, the fact that this involves two killings with murder one charges on both, and, as if all that is enough, some pretty good evidence.”

  “I know, Jim,” Brian said. “So are you telling me there's nothing that can be done?”

  “No, I'm telling you that there's not much that can be done. I called in a couple of political favors, and I did make some progress.”

  “What kind of progress?” Brian asked expectantly.

  “They won't seek the death penalty. It's going to be turned over to a committee in the DA's office to review
the facts and make a recommendation. That recommendation will be carefully considered for about three weeks. Then the committee will recommend that the death penalty not be sought. The committee is not just prosecutors, but some influential private citizens. That keeps the heat of the decision from the DA's office.”

  There was a silence while Brian assessed, not quite sure of what to say. He wanted to say, “That's it, no death penalty?” Instead he could only say, “I see,” reflecting that there was no cause for optimism if a life imprisonment were the best guarantee he could get from a man with Orson's connections.

  Orson spoke as if he could read Brian's thoughts. “I know it's not much, Brian,” Orson said empathetically, “but I'm afraid it's the best we can do.”

  “I understand,” Brian said softly, “and I appreciate what you've done. Truly. One day—”

  Orson didn't let him finish his promise to return the favor. “I just wish we could do more. Keep me informed, Brian. I'll call you if anything else breaks.”

  Brian found himself wondering who the “we” might be. “Thank you again, Jim. Talk to you soon.”

  In the first days after Barbara's arrest, Brian had been portrayed as a shady figure who somehow brought about all that had happened in his world and who was unworthy of his position of public trust. The office phones rang off the hook, largely with demands for his resignation or calls for his impeachment. Brian was kept informed but couldn't really bring himself to care. It all had the surreal quality of an out-of-body experience, as if he were watching someone else live this bizarre life and could do nothing but wait for a plot beyond his comprehension to unfold.

  As the days passed and details came more into focus, some creative reporter determined that more papers would sell if Brian were a victim rather than a perp. A lengthy article portrayed him as the all-American boy who made good, marrying the girl next door, and then succumbing to the feminine wiles of his own personal Mata Hari. The girl next door and Mata Hari, as it turned out, were one in the same. Brian considered how little the media knew about Barbara, but it didn't stop them from building their own version of her, pouring out pages of details, most of them false or offensive. Then the irony of this thought suddenly struck him. Just how well had I known Barbara?