Copyright © 2000 Paul Weiby. All rights reserved. 

    Sarah O’Brien was cracking up watching her 6’4", 230 lb. husband, Toby, peel a tentacle off the wine bottle only for it to re-attach while he peeled back another of the eight.

    "Let’s take him home as a pet. I think I’ll name him Ollie Octopus," she said. She felt every living creature deserved a name.

    "He would make a great pet, babe, but we wouldn’t be able to keep him alive. Ollie has fallen in love with this bottle and even though he doesn’t weigh more than a couple of ounces, it’ll take four people to get him off. However, he’ll die if I can’t get him unstuck and back to the sea pretty soon."

    Sarah took the bottle from Toby’s hand, leaned over the gun’l, and dipped the bottle into the sea. Ollie Octopus swam away.

    How does one get a mollusk stuck on a wine bottle? Yesterday, Toby had put the bottle in a lobster trap with some rotting fish heads. The object being that the wine would be cooled, by the sea, to the proper temperature to go with fresh lobster that would be attracted by the tasty bait.

    Sometimes he finds Moray Eels, Sheepshead (a fish with enormous teeth whose favorite food is the California Spiny Lobster), octopus, of course, and once a baby Leopard Shark in the traps. These are critters lobster men don’t want to see when they pull their traps. They all eat these delicious crustaceans. Although lobster is high on the list of favorites meals for octopus, Ollie was too small. The 3 lb. lobster in that trap would have eaten him if he hadn’t attached himself onto the bottle on the side away from Lenny lobster. Eat or be eaten. Sea life isn’t substantially different from humankind.

    The water was boiling on the little galley stove. Toby jammed Lenny Lobster in, head first, giving him a quick and merciful execution. It was always a wonder how their carapace turned a bright red from the dull, grayish red in a fraction of a second. It would now be cooking by steam until Toby finished emptying and re-baiting the next twenty-two traps, the contents of which, he would sell to a local restaurant.

    Toby found something in the next trap that he never saw in a trap before...a gold, Rolex watch. There’s no way a watch can get into a lobster trap, sitting on the bottom at 60’, by accident. A skin diver could drop it in. Or a trap could be pulled up to a boat so it could be dropped in without the dropper getting wet. The question remains....

    After Toby finished pulling the rest of the traps, Sarah seduced him on the foredeck. Then they ate Lenny Lobster with melted butter and lemon plus garlic bread, a Caesar Salad and a very good Chardonnay. They pulled anchor and headed for the slip. The ocean was calm, the sky clear, their direction was toward the moon, which shined a path on the water that gave them the feeling they were riding a silver highway. The song "Isn’t it Romantic," comes to mind.

    While Toby belayed the mooring pennants, and spring lines, and policed up the boat, Sarah ran the catch up to Doreen’s Sea Food Restaurant. She came back with a check for $392, just as he was putting the hose back in the dock box. They finished their duties simultaneously, just as they often did with sex.

    Toby went back into the wheelhouse to get his wallet and keys out of a drawer. Two men seemed to pop out of the dark and boarded the boat without asking permission, which isn’t done among boat folks. Toby flipped a light on and recognized Dan Becker, the Chief of Police of this tiny town with one of his patrolmen.

    "Toby O’Brien, you’re under arrest on suspicion of the murder of George Schermer; please put your hands behind your back. You have the right to remain silent. Anything you say...."

    "Come on, Dan, this is a tasteless joke, but, Jesus, you're pointing a gun at me. What the hell is going on?"

    "I have an arrest warrant signed by Judge Caster. Now put your hands behind you."

    "Why the gun, Dan?"

    "Because you’re so big and tough and, a murderer. Now damn it, Toby, put your hands behind your back."

    "Okay," Toby said laughing. "Is this a surprise party? It isn’t my birthday. Tell me what's this all about." He put his hands behind. Dan snapped the cuffs on.

    "This is no joke, Toby, and you know it. You might as well go home, Sarah, Toby will have to stay in the slammer overnight. There’ll be an arraignment at nine in the morning when the judge will decide on bail, if any will be allowed. C’mon, Toby, let’s go."

    "You can’t be serious," Sarah said. "Neither of us has seen George in fifteen years. You won’t see any tears from us if he’s really been murdered, but you know Toby wouldn’t do anything like that."

    "He broke George's arm once. But that doesn’t make any difference. I’m just doing my job. I have an arrest warrant; I serve it. It’s up to the courts from now on. Hey, that’s a Rolex like George’s."

    The watch was sitting on the binnacle. Dan picked it up. "Hmm. The engraving on the back says: ’To George, from Dad.’ I’m not even going to ask where you got this. I’ll simply turn it in with the rest of the evidence."

    Toby wished he hadn’t said: "I found it in a lobster trap." Dan’s and Jeff’s amusement at that was the most he’d ever seen from these two who were notable for their lack of humor.

    "What other evidence?" Sarah asked.

    "The murder weapon for one," Dan said. "Let’s just go"

* * *

    Sarah was in the courtroom when Toby was brought in. He was manacled. The district attorney was there himself. This was rare, but it was two months before an election, and, this looked like a shoo-in, to him, where he could point to himself as being tough on crime and a ’hands on’ prosecutor in his campaign. Toby was charged with premeditated murder. The D.A. further asked that he be incarcerated without bond until a preliminary hearing could be arranged, at which time he should have a defense attorney, due to the severity of the crime and the preponderance of evidence.

    "I plead ’not guilty,’ your honor," Toby said. "I request release on my own recognizance. I’m not a flight risk. I was born in this town. My entire life has been spent here. I own a home here and am employed by the town as Manager of Public Works. My wife has an art gallery business here and I have a secondary business in the collecting and selling of seafood. I have no criminal record. I have no idea what evidence has been found in this case, but I have no doubt that it will be proved spurious because I know that I had nothing what-so-ever to do with any murder."

    "Your Honor," the D.A. said, "The physical evidence is so, overwhelmingly incriminating that there is no doubt that the accused is guilty. We have, the murder weapon, his spear gun with only his fingerprints on it. The victim left evidence of who his murderer was. We have photographs, which will prove conclusively the defendant’s motive. Now I don’t ordinarily give away the prosecution’s case before discovery, but you must see that there is no way a jury won’t convict him so he is automatically a flight risk. This is a first-degree murder case with possibility of a death sentence. The prosecution asks that no bail be allowed, or if the court is inclined toward bail, it be set for $1,000,000.

    Judge Casper folded to the D.A.’s request for no bail. Toby was hustled back to the lock-up.

    Sarah called the only lawyer they knew, a friend since infancy, Cal Randall. His specialty was tax law, but he said he'd had a buddy from law school who was getting a terrific reputation in criminal defense litigation. He'd get him on the case post haste.

* * *

    George had been the most thoroughly hated person to have ever lived in this town. His father had invented some kind of an electronic gizmo that NASA couldn’t live without. He started a factory to build them and discovered that his gadget was also useful in oil refineries, power plants, pharmaceutical manufacture, etc., and he became wealthy beyond measure. He sold to a larger company for a gazillion bucks and he and his wife promptly died, in an airplane crash when George was 19.

    George, Sarah and Toby were all in the same grade in high school. Just before graduation, George asked Sarah for a date. She refused, but he kept asking; she kept rejecting him. One day, he demanded that Sarah go out with him and she became rude, saying something like: "I’d sooner be dragged down Ocean Boulevard by my tongue than go out with you". He belted her with his fist, and when Toby saw her the next day her black eye was turning yellow and purple. She and Toby weren’t an item yet but they’d known each other since kindergarten and were friends. Toby caught George after school and told him that if he ever came near Sarah again, he’d kick the living shit out of him. George pulled a knife and came at him. Big mistake. Toby side-stepped, grabbed George’s arm and broke it in two places. Toby had never had a fight before or since, but that incident gave him the undeserved reputation as a brawler to some people.

    George stayed away from Toby, and, although they still lived in the same, small community, Toby and Sarah never spoke to him again. They’d see him, at a distance, on the street or at the marina, sometimes, but there was no sociability between them.

    At 33 years old George had never worked nor had he furthered his education. He still lived in his parent’s 15,000 square foot mansion on a bluff overlooking the Pacific. He bought Italian sports cars, a 130’ yacht, and copious quantities of illegal drugs. His only living relative, his younger sister, hated him because he’d been made the executor of the immense estate and lived like a rock star but doled out money to her as if he were a pauper.

    He threw wild parties at his home or yacht nearly every night. Drugs, booze and sex were in great supply so there was no end of new friends to flesh out his party list, but they seldom became old friends. He had a way of engendering their hatred, so even the most venal would stop enjoying his hospitality soon after meeting him. His hobby and passion was setting people up to cause them excruciating embarrassment. All who ever knew him would consider the world a better place should an accident befall him removing his life from this spherical rock we call earth.

* * *

    A grand jury was convened with amazing speed, because of unusually good cooperation from the D.A.’s office. Toby was indicted on the facts presented, and the trial date was set, again, with utmost celerity.

    Cal’s law school buddy, Doug Reznic, the defense whiz agreed to take the case, not only as a favor to Cal, but because it would be great publicity for him. The newspaper headlines were enough to cause criminal attorneys to lick their chops. EX-UCLA FOOTBALL GREAT ACCUSED OF MURDERING BILLIONAIRE. Shades of O.J. except that Toby played middle linebacker, and, though very good at that position, he never scored a touchdown. Doug wanted Cal to sit second chair despite his lack of experience in criminal law, but he saw advantage in having someone who knew the defendant so well and wholeheartedly believed in his innocence.

    The next step was discovery by the defense to get the specifics of the prosecution’s case. There were the D.A. and four deputy D.A.’s. on the prosecutors side of the table. Their ethnicity and genders covered all bases.

    Their case was that George Schermer was brutally murdered with a fishing spear. And further, it was premeditated; no one carries a spear gun without the intention of using it. Rarely is the murder weapon found at the crime scene, but the spear was still in the deceased. In fact, it was all the way through him, holding his corpse in a standing position  clear through the door of a hanging locker behind him on his luxurious yacht. The spear was still attached to the ’gun’ by twenty feet of stainless steel leader and one-hundred-feet of 1/16" nylon line. 

      The gun, which looked something like a child’s toy rifle, was powered by six surgical rubber tubes, which would be stretched over the trigger spear. When released in air, it could drive a spear all the way through a 6" thick piece of hardwood from twenty feet. Toby had designed and built this spear gun. Once he’d speared a 280 lb. black sea bass with it. The average spear gun you’d buy in a shop would bounce off the armor like scales, of a fish that large, when shot from 3’. This configuration penetrated through the fish’s heart from 6’. Half the people in this town would recognize that one-of-kind weapon as Toby’s.

    Forensics had already established that there was only one set of fingerprints on the gun and spear, Toby’s. Further, George apparently hadn’t died as fast as the murderer expected and was able to write, in his own blood, with his finger, on the bulkhead next to where he was found: ’Toby ki...’ which was taken to mean: ’Toby killed me.’ The D.A. pulled out an 8" X 10", color photograph of George with the spear through his abdomen. His eyes and mouth were wide open, giving the impression of surprise. The picture was taken, however, when the body was discovered, about five hours after he died. The printing in blood showed clearly, in a position that could be reached by the dying victim. 

      The police also found George’s watch on Toby’s boat, he having used the idiotic explanation that he found it in a lobster trap. The time of death was approximately 6:00 P.M. two weeks ago on a Thursday. Police checked and found Toby was neither at work nor at home. He had been working on his boat at that time, but George’s yacht was only two slips over and it would have been easy for Toby to board it without being seen. The D.A. said Toby’s motive was jealousy. The police found a stash of photographs of Sarah on George’s yacht. It was known that George and he had bad blood between them, and that he had once broken George’s arm.

    "Make us copies of the photos," Doug demanded.

    The prosecution felt they had enough to go for a death sentence but were open to a plea bargain, say second degree murder; twenty years with possibility of parole in ten.

    Doug said he’d check with his client.

* * *

    Doug and Cal visited Toby in his cell immediately after the discovery meeting to let him know the present situation as they saw it. "The evidence is pretty damning," Doug said. "I believe the best defense is an aggressive offense. I don’t have a complete strategy yet, but from what I've heard, everybody who’s known George can be a logical suspect. We can narrow that list down some by only keeping people on it who hate you as well as George. This is obviously a frame. Any idea who might be the real perpetrator?"

    "I hate to sound egotistical, but I can’t think of anybody who hates me, except George did. Everybody loves Toby."

    "Try this then," Doug said. "The guy who put out George's lights had to know: 1) Where you keep the spear gun, and: 2) How to find your lobster traps. 3) He had to have a boat or access to one. Give me names and I’ll get an investigator right on it."

    "I just thought of somebody. Roberta, George’s sister, took SCUBA lessons from me while I was teaching at Mel’s shop. Then we dated for a couple of months. I showed her how to spear fish and took her on my boat to the traps...and she had a thing for me. Then I got engaged to Sarah. Everyone knows how much Roberta hated George. She may still be mad a me for rejecting her. I’ll bet she’s the one."

    "I’ve seen the strength it takes to cock that spear gun. Roberta’s not a big gal; could she have done it?" Cal asked.

    "She’s a lot tougher than she looks."

    "Anyone else?" Doug asked.

    "Yeah. That reminds me that Phil Lasater is the only other person who’s used my spear gun; with my permission anyway. George knocked up his sister and everyone heard Phil threaten to kill George, but George gave him enough money to pay for an abortion and a good bit more. Phil and I used to go spear fishing together but he never forgave me for beating him out of first string in my sophomore year. He sat on the bench his entire senior year. Also, he’s got a pretty short fuse and has spent some jail time for assault. I’ll bet he's the one."

    "I haven’t seen Phil around for a couple of years," Cal said. "Do you know if he still lives around here?"

    "We’ll find out," Doug said. "Anyone else, Toby?"

    "Now that I think of it, Dan Becker, he's the chief of police here, has been out to the trap line with me on his day off. He’s seen my spear gun on the boat, but I can’t think of any reason he’d hate me. I can envision why he’d want to kill George though. Rumor has it that George bribed him, with big bucks, to turn his back on a possession charge. Then George threatened to turn him in for accepting a bribe; that’s typical of George. Of course, it doesn’t hold water because George would be in just as much trouble as the bribor as Dan would be as the bribee."

    "But George could just bribe his way out of trouble again," Cal said.

    "Yeah, and even though I can’t think of a reason for Dan to hate me, he’s the kind of guy who’d plan the murder to throw suspicion away from himself and wouldn’t care if an innocent person went down. He knew what he was looking for when he found George’s watch on my boat too. I’ll bet he's the one."

    "That’s three. Anyone else?"

    "Nope. I usually pull my traps alone or with Sarah. There’s not another person who knows where they are. They’re along an offshore reef and you’d have to be a pretty good navigator to find them, even if you’ve been there with me."

    "Then I’ll add Sarah to the list." Doug said.

    "No! She’s my wife. We love each other. That’s crazy to put her on the list."

    "I put everyone on the list who fits the criteria."

    "Put Cal on the list, then, also. He’s the only other person, in the world, who’s been out to my trap line other than the ones we mentioned. Wouldn’t that be something? My wife or one of my lawyers did the deed."

    "The D.A.’s attributing motive to some photographs found on George’s yacht," Doug said.

    "I imagine George took some telephoto shots of Sarah from his wheelhouse. It’s pretty high and you could see my entire boat from it. Sarah’s in the habit of working on the boat in short-shorts and T-shirts sans undergarments. That would be pretty provocative to any heterosexual male between eight and eighty. That’s no motive."

* * *

    The next day a courier delivered the copies of the photos which were the backbone of the prosecution’s theory for Toby’s motive. Doug pulled one out and whistled. He slid it over to Cal. It was a thick package, but they needed to look at only about five to get the picture. Sarah was pictured in kinky, sexual activity with both men and women. They decided not to show the pictures to Toby.

    They had a private detective working around the clock to look for evidence to see if they could prove that one of the people on their list could replace Toby as the number one suspect. The P.I. was fast. His report came in that afternoon:

1. Roberta had been in Europe for six months and was still there.

2. Lasater had been in jail, in Michigan, on another assault charge during the week of the murder.

3. Dan had been tied up on a court case on the other end of the county for the time and had rock solid witnesses that he stayed there for two days, the second day of which was the day of the murder.

4. Cal happened to be in Philadelphia at a convention for tax lawyers.

5. There was no way that the P.I. could verify Sarah's whereabouts.

    The defense team visited Toby in his cell that evening. They gave him the P.I.’s report.

    "You have to face it, Toby," Doug said. "If you can’t think of someone else who could have snatched your gun and put the watch in the trap, and you are innocent, Sarah is the number one suspect. Further, we saw the photographs of Sarah and they're quite graphic."

    "Well, between us guys," Toby said, "Sarah had some bizarre ideas about sex when we first got married. I wouldn’t be surprised that a camera might have caught her, now and then, doing things that gran’ma would have thought was perverted. But that was before we were married. In the early days of our marriage, she decried my lack of imagination; she wanted me to try some positions and gadgets that I couldn’t get into. Actually, since then, we’ve had a pretty good sex life; she's accepted my rather pedestrian approach to the subject."

    "These photos are recent, Toby. Some are ’date stamped’ only a month ago."

    "How come she hasn’t been arrested then?" Toby asked with a catch in his voice.

    "There’s nothing illegal in being in pornographic pictures unless you’re with someone younger than 18."

* * *

    The trial began on Monday at 9:00 A.M., promptly. Cal looked around the courtroom and was surprised that Sarah wasn’t there.

    The jury selection must have been the fastest in history for a murder trial with such large media coverage. The D.A. only rejected one in the pool of the first 12. She had met George and indicated that anyone who killed him should be elevated to Sainthood. The judge excused a couple of potential jurors: one who was nearly deaf and another who appeared to be retarded. Doug rejected one who gave a religious oration about following the ten commandments during his examination. The jury and alternates were seated by noon.

    The D.A. was eloquent in his opening. He described the defendant as having held a grudge for 15 years until he was driven to commit the most heinous of all crimes...murder. That he was driven mad when he discovered photographs of his wife, furnished by the victim having sexual relations...and not just normal sex but all kinds of deviant behavior....

    That finished the first day. Doug went back to his office to work on the opening for the defense, and Cal went to stay with Toby in his cell, as he seemed pretty shaken up by the opening statement and the fact that Sarah hadn’t shown.

    They chatted for a while. Toby indicated that he’d like to get some sleep so he’d be fresh and alert in the morning. Cal left about nine having just spent the most emotional 12 hours of his life.

    Cal thought he’d better see Sarah and find out why she didn’t show at the trial. Lights were on at the O’Brien’s house. Cal rang the doorbell. A woman, about seventy years old answered.

    "My husband and I bought this house. Mrs. O’Brien doesn’t live here anymore," she said to Cal’s request to see Sarah. "I don’t have Mrs. O’Brien’s new address but I can give you the name of the real estate agent. Maybe he has it." She showed Cal his card.

    It turned out that he is one of Cal’s clients with complex tax problems. Cal had the agent’s home phone number in his brief case. He thanked her and went to his car; he dialed his cell phone.

    "Bernie, this is Cal. When did you sell Toby’s house?"

    "A month ago; escrow is closed and Sarah already has the cash. They got a great price for the place. I found ’em a buyer who even bought the furniture from them because it was cheaper than bringing their own stuff out from the East Coast. You lawyers must be gouging poor ol’ Toby something fierce. I hear they sold his boat and traps for a super price too. They didn't do too well on their cars though. His was a classic 1956 T-Bird that should have been worth...."

    "Bernie, do you have any idea where Sarah is?"

    "No. I took her to the jail, last week, to get Toby’s signature on some papers, and that’s the last I’ve seen her. I got a letter from her today thanking me for my help. There’s a sealed envelope for Toby in it. I plan to go to the jail tomorrow morning and give it to him."

    "Where was the letter mailed from?"

    "Let’s see; the envelope’s right here on my desk. It’s post marked: New York.

    "I’ll be right there to pick it up."

    Cal’s mind was awhirl. The writing on the outside of the envelope said: ’To Toby O'Brien, PERSONAL.’ He decided that, as his lawyer, he could open it.

        Dear Toby,

You were a good husband, but too up tight. I couldn’t face the thought of nothing but the missionary position for two minutes, twice a week, (or less) for the rest of my life. I have found a man with a libido matching mine and we’re running away together. I’m sorry, Toby. I was going to ask you for a divorce and handle the details in a more straight forward manner, but George wanted to show you pictures that would hurt you and, he, essentially, blackmailed me to stay for his pleasure as well. I decided it was time he needed to be killed. Your spear gun was the only weapon I could think of that would be a sure killer in the hands of an amateur such as I. My ’gentleman friend’ has some contacts so he was able to get us new identification and we feel perfectly certain that no one will ever be able to find us. He put the Rolex in the lobster trap. I didn't realize that until you pulled it out from under a 6 lb. bug. He also wrote ’Toby ki’ on the bulkhead with his own finger. I, sincerely, hope this letter will get you off the hook and you find a girl with simple appetites and have a happy life.

Good luck,
the ex Sarah O’Brien

    Cal called Doug and read the letter to him. "That sure changes the thrust of my opening remarks," he laughed. "We’ll ask for the charges to be dropped for Toby, tomorrow morning. I shouldn’t think it would be a problem. They’ll put out an APB out for Sarah, but I wouldn’t bet that they’ll find her. I figured she was the perp from the beginning."

* * *

    As Cal walked out of the courtroom with Toby, he expected him to be devastated, but he looked at his face and Toby seemed to be suppressing a smile.

    "Will you drop me off at the airport?" Toby asked.

    They were silent on the drive. Cal was confused and Toby was positively chortling.

    "As my attorney, anything I tell you is still privileged, right?"

    Cal nodded.

    "Well yes, Sarah has unusually uninhibited, sexual desires, but contrary to what we’ve been saying, so do I. We joined a club where couples, like ourselves, acted out all our fantasies, and not necessarily with our own spouses. There are more of these clubs about than you might think.

    "Pictures were taken, which was okay, but George got his hands on some of them; with his money he could get plans to the A-bomb, and he told us that he’d have copies made and send them to everybody in town. I decided I’d do the world and myself a favor. My spear gun is the only weapon I ever had. When I couldn’t get the spear out of the wood behind, we came up with a story that so obviously would be thought of as a frame up that I couldn’t be convicted. I’m the guy who’s going to run away with Sarah. We have all our money in a bank under our new identity, I won’t tell you where, despite lawyer client privilege. So this is ’good bye,’ good buddy."

The End