The Clinic

shaped up, what would be used as evidence and have to be turned over under the discovery rules.

Meaning Muscadine had told his lawyer about the surgery. But Muscadine still had no idea who the recipient was, and if the D.A. chose not to use the information, keeping the old man under wraps, and if Oster didn't ask the right questions, the details might never come out.

But the defense's problem could be turned back on the prosecution, too. Because if Muscadine didn't confess openly, direct proof of his guilt was lacking: no weapons, no witnesses, no physical evidence.

How much to use, how much to hide?

Leah Schwartz, the assistant D.A., was still going around with it. Still talking plea bargain or even dismissal. Forty-eight hours to file or release Muscadine on bail.

Did Oster's call mean he didn't yet appreciate the weakness of the case against his client?

He said, “So will you see him, Dr. Delaware?”

“I don't think so.”

“Why?”

“Conflict of interest.”

He'd expected the answer and his response was rich with malicious joy. “Okay, Dr. Delaware, then I seriously suggest you think about this: If I subpoena you as an expert witness, you'll get paid. If I subpoena you and you don't cooperate, I still get you deposed and in court, but as a regular witness, and you don't receive one thin dime.”

“Sounds like you're threatening me.”

“No, just laying out the contingencies. For your sake.”

“It's good to know someone's looking after my interests,” I said. “Have a nice day.”

I phoned Milo and told him.

He said, “Figures. Leah said your name came up today when she was talking to Oster. Apparently Muscadine told him about your visit and Oster's making a big deal about having a psychologist investigate Muscadine as evidence that we knew all along he was under mental strain. So now he wants to use you. It's an old tactic, co-opt the other side's consultant as your own. If he can't turn you around, he tries to humiliate you on the stand and reduces your usefulness to us.”

“Has Muscadine been charged yet?”

“No, but there has been progress, 'cause this morning, we found a nice big cache of steroids in his apartment. No doubt that'll be part of the defense, too, if it gets that far: drug-induced rage. But at least it buys us some more jail time. Despite that, Leah's still thinking about a plea bargain because she's worried a jury will have sympathy for Muscadine's ordeal.”

“What about Kathy DiNapoli?” I said. “If he killed her just because she saw him with Mandy Wright, there wouldn't be much sympathy for that.”

“Yeah, but we've got no evidence on Kathy. When I mention her name, he gives that charming actor's smile, but that's all.”

“What's the plea bargain?”

“Manslaughter on Hope only. Leah'll demand voluntary, Oster will demand involuntary, they'll work something out.”

“If the case is that weak, why would Oster bargain at all?”

“He might not. Leah's keeping Big Micky's identity close to the vest for now, but she may pull it out to scare Muscadine: Walk free, turkey, and the mob goes for you. She's hoping that'll convince Muscadine to accept a reduced sentence at a federal prison under protection.”

“Sweet deal for four cold-blooded murders,” I said. “But doesn't Oster's calling me mean he thinks the case is stronger than it is?”

“Hard to say. He's one of those brand-new hotshots, grew up on Perry Mason, thinks he's smarter than he is. What Leah's really worried about is he'll motion to get the whole thing dismissed on insufficient evidence and succeed. If we could find a weapon, anything physical… but so far no luck. The only knives at Muscadine's place were for spreading butter and no guns at all to match Locking. The guy's covered his tracks.”

“Starving actor,” I said. Then something hit me. “When I spoke to Mrs. Green- his landlady- she told me she kept a gun around the house for protection. She also told me Muscadine took care of her dog when she was gone. Meaning he had access to her house. What if instead of buying a gun he decided to borrow one?”

“Borrowed it and put it back?”

“Why not? He wouldn't want to alarm Mrs. Green. And I'll bet she registered it, so even if it's missing you could make a point for Muscadine being the only one with access. And ballistics might have something to say about the bullet pulled out of Locking's head being compatible with that model. It wouldn't convict him, but it might tenderize him a bit.”

“It is a long shot, but why not- Mrs. Green. Yeah, I've got her on my to-call list.”

It took fifteen minutes for him to phone back and this time there was melody in his voice.

“American Derringer, model one, takes.22 long-rifle ammo, which is exactly what was pulled out of Locking's head. She hadn't fired it since she took shooting lessons two years ago. And Muscadine did have a key to her house. She ran to look for the gun, found it in the kitchen drawer where she left it, but it looked cleaner than she remembered. Freaked her out. I told her not to touch it and she said she wouldn't touch it with a ten-foot pole.”

“He cleaned it,” I said. “Too smart for his own good.”

“Let's not celebrate yet, but I'm going over in person to pick it up, take it to ballistics. Thank you, your excellency, salaam, salaam.”

“So what do I do about P.D. Oster?”

“Shine him on.”

Two hours later he said, “Ballistics match, and Deputy D.A. Schwartz would like to have a word with you.”

I knew Leah Schwartz from a previous case. Young and smart, with curly blond hair, huge blue eyes, and, sometimes, a sharp tongue. She came on the phone sounding ready to run a marathon.

“Hi, again. Thanks for the gun tip, I should put you on retainer.”

“Talk is cheap.”

She laughed. “So's the city. In terms of Ronnie Oster, maybe you should talk to him. Especially now that we've got the.22.”

“Why?”

“Because up to now Muscadine's refused to say a word about the crime. Maybe you can get him to spill.”

“If he does, it's confidential.”

“Not if Oster uses you on the stand. Or even deposes you. Because discovery goes both ways, now, thanks to the voters, so once Oster opens up the door about Muscadine's mental status, I can cross-examine you and get anything you learn out in the open.”

“And if Oster doesn't put me on the stand?”

“Why wouldn't he?”

“Because I'm no fan of diminished capacity and I won't testify Muscadine was insane.”

“Oster knows that, that's probably why he mentioned mental anguish, not dim cap. And I'll grant Muscadine his anguish. The bastard was harvested. If you get up there and talk about mental anguish, we'll have big fun on cross getting into all the details. Another thing you can do is write a report if Oster doesn't have the smarts to specifically ask you not to. Do it the minute you have a chance because once it's written down, it exists as discovery material. If Oster puts you on his witness list, or uses you in the preliminary hearing, let's say to get special housing for Muscadine in the psych ward, your work product is probably fair game.”

“Probably?”

“We'll squabble but I've got confidence.”

“I don't know, Leah.”

“No one's asking you to lie. The guy was anguished. But not enough to excuse four murders. And the way things are going, we can only present two of them- Devane and Locking- to the jury. I don't