committed so close to one another, but we had no evidence that they were connected, so we assumed that we were probably just dealing with a coincidence.
'Then, Monday night, I remembered that I had seen several credit card receipts to the Overlook Motel in evidence we had taken during a search of Justice Griffen's home office.'
Tracy's stomach tightened at the mention of the Overlook.
She saw exactly where Christenson was going and she could not believe it. Until now, the defense was convinced that the prosecutors knew nothing about Justice Griffen's extramarital affairs.
But it was clear that not only did they know about Griffen's trysts at the Overlook, they had drawn an unexpected inference.
'Initially, the receipts meant nothing to me,' Christenson continued.
'Then I recalled that the Overlook was a very seedy motel. Not a place where someone like Justice Griffen would normally go. On a hunch, I brought a photograph of Laura Rizzatti to the Overlook and showed it to Annie Hardesty, who is a clerk at the motel. Mrs. Hardesty confirmed that Justice Griffen used rooms at the motel on several occasions to meet women.
She also told me that she had seen Laura Rizzatti with the judge more than once.'
Christenson paused to let the implications sink in.
'Then she told me two other facts that I considered important. First, she told me that Miss Cavanaugh and Barry Frame, Mr. Reynolds's investigator, came to the motel well before the trial and learned that the judge was using the motel as a love nest.'
'Which will make it difficult for Mr. Reynolds to claim surprise, Your, Honor,' Geddes interjected.
'Let's hold off on your argument until I've heard all of Mr.
Christenson's statement,' the judge said sternly. 'Mr. Christenson, you said there was something else Mrs. Hardesty related.'
'Yes, sir. She said she started watching the news about the case after Miss Cavanaugh's visit because she thought she might be a witness, and she recognized the defendant, Mrs. Griffen, as someone she'd seen at the Overlook. She remembered the incident quite clearly because Mrs.
Griffen and her husband were arguing so loudly that one of the other guests complained.
'Mrs. Hardesty told me that she went over to the room the judge .was renting to get them to quiet down when the door burst open and Mrs.
Griffen came flying out. Before the door opened, though, she heard part of the argument and she is willing to testify that Mrs. Griffen threatened to kill her husband if she Caught him cheating again.'
'When did you discover this information, Mr. Christenson?'
Judge Baldwin asked.
'Yesterday and the day before, Your Honor.'
Geddes leaned forward. 'I believe this evidence lays a strong foundation for our theory that Mrs. Griffen learned that Laura Rizzatti and the judge were lovers and that she killed them both when the judge did not heed her warning to stop his affair with Miss Rizzatti.'
'What do you have to say, Mr. Reynolds?' the judge asked.
Reynolds had carried a paperback copy of the Oregon Rules of Evidence into chambers. As he was flipping through the pages, looking for the section he wanted, the book slipped from his hand and fell to the floor.
The pages crumpled and the cardboard cover bent. Reynolds leaned over to retrieve the book and Tracy saw his hand tremble as he smoothed out the pages. When he spoke, there was an uncharacteristic quiver in his voice.
'Rule 404 (3) states that evidence of other crimes is not admissible to prove that a defendant is likely to have committed the crime for which she is on trial simply because she committed another, similar crime before.'
'Yes, Mr. Reynolds,' the judge interrupted. 'But the rule also states that proof of prior crimes is admissible for other purposes, such as proof of motive or to show a plan involving both crimes. If there is proof that Mrs. Griffen had a plan to kill both victims or that she killed her husband because he and Miss Rizzatti were lovers, wouldn't the evidence of Miss Rizzatti's murder be admissible?'
'It's possible, Your Honor, but you've forgotten a step the Supreme Court set out in State v. Johns, the case that set up the procedure a judge must use to decide if prior crime evidence is admissible. First, you must decide if the evidence is relevant to an issue in the case, such as proving motive. Then you must decide if the relevance of the evidence is outweighed by the prejudice to the defendant that inevitably occurs if proof of another crime committed by the defendant is introduced at trial.
'In deciding the relevance versus prejudice issue, a judge must consider four factors, one of which is the certainty that the defendant committed the other crime. The burden of convincing the court on that point rests on the state and I haven't heard a single piece of evidence that connects Mrs. Griffen to the Rizzatti murder.'
'Does Mr. Geddes have to convince me beyond a reasonable doubt that Mrs. Griffen killed Miss Rizzatti before I can let in the evidence of the Rizzatti murder?'
'No, Your Honor. If I remember correctly, the cases hold that you must be 'certain' Mrs. Griffen killed Miss Rizzatti, but that is still a high burden. There is a case, Tucker v. State, from Nevada that I would like to call to your attention.
'In the spring of 1957, Horace Tucker called the police to his home in Las Vegas. Tucker was unshaven, he looked tired and he had been drinking. A detective found a dead man on the floor of Tucker's dining room. The man had been shot several times, but Tucker said he found the body when he woke up and had no idea what happened. A grand jury conducted an extensive investigation, but did not indict Tucker because it deemed the evidence of Tucker's guilt to be inconclusive.
'Roughly six years later, in late 1963, Tucker phoned the police again.
This time they found a dead man on the couch in Tucker's living room.
The man had been shot to death. Tucker looked like he had been drinking. He said he awakened to find the dead man and had no idea how he got into his house or how he was killed.
'This time, Tucker was charged with murder. At his trial, the prosecutor introduced evidence of the first murder over a defense objection. Tucker was found guilty of murder, but the Nevada Supreme Court reversed because it found nothing in the record that proved that Tucker killed the first man. The court held that evidence of a prior crime is inadmissible unless there is proof that the defendant committed the uncharged crime.'
'That case is absurd,' Geddes said. 'I don't care what they do in Nevada. A Nevada case isn't precedent here. I don't think Oregon law requires me to jump through all these hurdles to get this evidence before a jury.'
'Calm down, Mr. Geddes. I'm not that impressed by that Nevada case myself. But it's clear that this issue is too complex for me to decide today. I'm going to dismiss the jury until we clear this up. I want briefs on the prior- crime issue from both of you by Friday.'
Judge Baldwin looked worried. 'One matter greatly concerns me, gentlemen. If I allow your motion, Mr. Geddes, I may also have to grant a defense motion for mistrial or a continuance because of the prejudice to the defense of reopening at this stage.
I'm deeply troubled that the defense may not have the ability to investigate these new allegations against Mrs. Griffen during trial. I want this prejudice issue thoroughly briefed. This is a death penalty case and I am going to make absolutely certain that both sides have a fair trial.'
'Why didn't you tell me that a witness heard you threaten to kill Justice Griffen when we discussed the Overlook?' Matthew asked Abbie as she paced back and forth across her living room.
'I don't, remember seeing her. I was upset. I just stormed out of the motel room. I was so mad, I don't even remember what I said to Robert.'
Matthew walked over to the French windows and stared out at the back lawn.
'I don't know if we can avoid asking for a mistrial if the judge let's Geddes reopen the case,' he said grimly.
'We've got to go on,' Abbie said, turning toward Matthew with a look of desperation. 'I couldn't go through another trial.
I'd be trapped in this house again.'
'You've got to consider the possibility. If the jury starts thinking that you may have murdered Laura Rizzatti, they'll forget everything else they've heard. And the judge is right. How can we possibly investigate the Rizzatti murder while we're in trial?'
