Absence of Malice

by Dana

Disclaimer: Characters and concept belong to Kevin Williamson and WB.

Note: Blame too many hours watching US law shows...

Part Three: Her Alibi

There was a full moon over Capeside that night, the pale glowing light reflecting in scattered pools of water left over from a brief fall of rain. Joey was oblivious to the beauty if the evening as she wearily unlocked the front door of the law office. She was worn out from worry and anger that Nora was presently locked up at the Capeside police station. It was barely sinking in, the trouble her friend was facing. Joey wanted to try and forget all about it and go home to bed, but the arraignment was in the morning and she still had to talk to Pacey. She shrugged off her coat with as much energy as she could muster and walked inside.

To her satisfaction, the room was dimly lit so she didn't bother turning on any other lights. Her head was aching and she was glad of the gloom.

"Hey." Pacey's voice was quiet so as not to startle her. Joey glanced up to see him seated behind his desk flipping through a notebook. He stopped what he was doing when he saw the expression on her face, and stepped quickly towards her with concern shadowed in his pale eyes. "Are you all right?"

Joey could barely feel his warm broad hand on the side of her neck as he stared questioningly at her. She just shrugged and made her way to her desk, not noticing Pacey's intense gaze follow her every move.

"They arrested her," Joey sighed as she flopped tiredly into her chair.

"I figured as much," he replied after a moment's pause. Pacey wandered over and sat on the corner of her desk. "From what I heard, questioning Nora was just a formality. They're not looking for anyone one else, Jo … They think they've found their killer."

She closed her eyes as if trying to block out the words, but there was no hiding from the facts. Focusing her thoughts, she asked, "What did you find out?"

Pacey assumed his professional lawyer's expression and rattled off what he knew. "After they got the preliminary toxicology report from the coroner they went straight to the drugstore to look around. When Doug found the morphine missing they checked for any sign of a forced entry or the drugs lock-up being tampered with, but from the look of it there's been no unauthorized access. The log was up to date, Lewis had signed off that all the dangerous drugs were present and correct before he left work last night. So whoever took the drugs did so after the drugstore was closed. They didn't leave any prints, the only ones found belonged to Lewis, Nora and the junior pharmacist."

"Did they question Zach?"

"He didn't know much. Said he finished work at six when Lewis sent him home and confirm that Nora left earlier than Lewis as usual."

"But how did Doug get a warrant so quickly? There was no proof that Lewis didn't take the drugs home himself," Joey protested.

"Zach also said Nora and Lewis had been fighting for a couple of days, in fact they were barely speaking to each other at work. He told them Nora was mad at Lewis for some reason, and she wasn't making a secret of it. Doug didn't need to hear any more, he got the warrant and found the syringe and morphine ampoules. When they found Nora's fingerprints all over them it was a forgone conclusion that she took the morphine from the drugstore late that night after Lewis fell asleep on the couch, came home and injected him with it, then hid everything under her mattress and went to sleep. The 911 call just before 6am checks out, so he'd just been left there to die."

"She says she didn't do it," Joey murmured as she shook her head.

Pacey stared at the bookshelf behind Joey's head before turning his uneasy eyes on her. "From the evidence it's not looking too good, Jo. There was a surveillance camera outside the drugstore… Not the greatest quality pictures but it shows a car pulling up in the early hours of the morning."

Joey held her breath. "Was she there?"

"From the angle of the camera the police could only see part of the number plate. The vision's blurry, so the tape's been sent to the crime lab in Boston to get it checked out and authenticated… But the partial plate matches Nora's car."

Joey had her head in her hands. As she processed all of the mounting evidence that was damning Nora, she pictured the older woman's face as she professed her innocence. It was hard to know what to believe, but in the end Joey had to side with Nora. The alternative was unthinkable.

"After the arraignment we'd better get to work finding her a good criminal defense lawyer," said Joey, shifting her attention back to Pacey who was frowning at her.

"Will you be all right doing the arraignment? You look like hell."

"Thanks, Pacey, you always know what to say to cheer me up," Joey replied drolly.

"You know what I mean," Pacey countered with a repentant sigh. He gently entwined the fingers of one hand in hers. "I know how you feel about Nora, and I'm just worried."

"Because you think she murdered Lewis."

"I… I don't know what to think," Pacey stammered. He had only heard the police and coroner's side of things while Joey had heard Nora's version of events first hand. And it seemed she was offering no alternative explanation that might preclude her involvement. Pacey stared at her intently. "I just don't want to see you get hurt if this thing goes all the way. You know they'll charge her with murder one."

Joey let her hands fall dejectedly into her lap, forcing Pacey to let go. She didn't meet his eyes. "I know."

Pacey hesitated and then let out a slightly frustrated breath. Sometimes he wished Joey could just give in and include him in whatever she was going through, but she had never liked receiving comfort from him. Pacey didn't know why, except to assume she saw it as some sign of weakness — and lawyers weren't supposed to be personally affected by their cases. Unfortunately Joey didn't open up to him about anything unrelated to work, so he couldn't prove his theory.

Keeping the conversation impersonal so she wouldn't back off further, Pacey continued. "I did some checking, Judge Wilkins will be presiding tomorrow, so we'd better be careful about asking for bail. He hates murder charges."

"I'll handle Wilkins, you just start thinking about the best possible defense lawyer for Nora," Joey answered, relieved he wasn't going to push her. "We'll make some calls as soon as we get back from court."

She got to her feet and collected some papers from her desk. Pacey did not move from his spot and just watched her until she became self-conscious.


Pacey held her gaze for a long moment. He knew Joey was becoming irritated so he bit back what he was going to say, and instead went with, "Nothing."

Joey raised one eyebrow imperceptibly and brushed past him to get her coat. "Meet you here at eight? We should get to court early so we can talk to Nora beforehand."

"I'll be here," Pacey confirmed, still sitting on her desk.

"Well, try and get some sleep, and I'll see you then," Joey said as she pulled on her woolen coat and tucked her briefcase under her arm. "'Night, Pacey."

"'Night, Jo," he sighed in response.

* * *

The court house in Barnstable was the kind of building that people liked to call historic rather than run down. The large ceilings always made the old edifice freezing in winter, and it was heated by ineffectual gas burners that Joey always suspected would cause the place to ignite one day. Today was no exception. She sat at the defense desk, her foot tapping nervously on the wooden floor, wishing it was just the cold that was causing her fidgeting. She was used to being in the courtroom — she and Pacey had tried a number of misdemeanors between them. But this was the first time she had ever had to appear at a murder arraignment, and the first time she had an old and trusted friend sitting beside her who was the accused.

Joey looked at Nora and smiled reassuringly. She had said little about her night in jail, but Joey noticed a gauntness in her visage that she had never seen before. Nora actually looked old, something Joey had never really acquainted with her before. Though her hair was gray, Nora had always had a sense of style about her that belied her years. Joey liked to picture her as she always had as a child, an ageless grandmother-type who always had a kind word to say about everyone. She was one of the only people Joey knew who was truly compassionate and unfailingly loyal — someone who gave without expecting something in return. This just drove home the absurdity of the situation at hand. Nora could not be responsible for killing anyone.

The ancient clock that adorned the wall above the empty judge's bench ticked over to nine o'clock. Murmuring voices grew quieter, and Joey placed her hand on Nora's arm. Pacey glanced at them both from the other end of the table and nodded his head. The judge was entering.

"All rise," the bailiff ordered in a sonorous voice. "The honorable Judge Samuel Wilkins presiding."

The court rose from their seats as a heavy set man in flowing black robes entered from a side door and took his place behind the bench.

"Be seated."

The judge took his time putting on his glasses and arranging some papers before him. Nora sucked in her breath anxiously and this time it was Pacey who held her hand.

"This won't take long," he whispered to her. He wasn't sure if this would reassure her in any way, but to say everything was going to be all right would have been a lie. Pacey smiled the best he could and squeezed her hand.

"Where are we?" the judge asked in a voice already bored with the day's proceedings.

"Case number 35609, Commonwealth versus Nora Coleman."


Joey stood up in synchrony with the Assistant District Attorney at the nearby table.

"Good morning, your honor. Campbell White for the People," he announced.

"Josephine Potter and Pacey Witter for Mrs Coleman, you honor," Joey said in turn.

"Read the charges, Mr White."

"'Nora Elizabeth Coleman, you are charged with one count of murder in the first degree, a violation of Massachusetts Penal Code 187, for the death of Lewis Abraham Coleman.' Do you wish to have to have the complaint read to you in full?"

"We waive reading, you honor, and enter a plea of not guilty," Joey replied smoothly. She even surprised herself when her nervousness vanished as soon as she was called upon. "If I may be heard on the issue of bail…"

"Mr White?"

"The People would oppose the setting of bail, you honor. Nora Coleman has a brother living in Barbados and access to funds in a joint account shared with her late husband for the purposes of their pharmacy in Capeside. There is a flight risk here, and under the circumstances, People would ask that bail be denied."

"Your honor, Mrs Coleman has lived in Capeside her entire life and does not even have a valid passport. She has no criminal record, and has deep roots within the community and church. She has absolutely no intention of leaving this jurisdiction. Furthermore, Mrs Coleman has just lost her husband of 42 years—"

"Who she's accused of murdering…" Campbell interjected.

"To which she has pleaded not guilty, your honor," retorted Joey, narrowing her eyes at the D.A. "We are asking for a reasonable bail so that Mrs Coleman's suffering in this matter is not further compounded."

The judge contemplated his naval for a few seconds before decreeing, "I believe the flight risk here to be minimal, Mr White. Court finds that bail is appropriate and is set at $20 000… Our docket is light at the moment, I’d like to hold the preliminary hearing within seven court days. Any objections, Counselors?"

"No, your honor," Campbell and Joey said together.

"Good. I'm scheduling the preliminary hearing then for February second, 9 am, Division 3… Call the next case."

Nora looked startled as there was sudden movement and different lawyers were approaching their table for the next arraignment. Pacey took her arm and helped her to her feet, while Joey collected their papers and moved off to one side.

"What happens now?" Nora asked, bewildered.

"Now we sort out your bail and take you home," Joey said, cheerier than before.

Nora breathed a sigh of relief. "Thank you, Joey."

"This is only the beginning, Nora. Now the real work starts. We'll discuss everything once you've had a shower and a change of clothes. Pacey and I will look after you."

Nora just nodded and allowed them to take her the see the court clerk. She was in no position to argue.

* * *

"She's been in there nearly half an hour," Pacey said as he stood at the foot of the stairs leading up to the second story of the Coleman residence. "Do you think you should check to see if she's all right?"

"She just spent the night in jail, Pacey. You can hardly blame her for taking a long shower. I know I would." Joey didn't look up from the note pad she was writing on.

In the background, they heard the answering machine click on, but Pacey had long since turned the volume down so they weren't bothered. Nora had already received a dozen calls since they had returned from the courthouse, and over forty messages had accumulated overnight. The Capeside grapevine lived up to its reputation, and by now everyone knew Nora had been charged with murdering her husband.

"I've narrowed the best candidates down to three," Joey went on, ignoring whoever was calling. The visitors — both concerned friends and overly curious gossips — would start arriving on the doorstep at any moment so they didn't have much time. "Okay, Bernie Wallace. He's a bit pompous but he's one of the best legal minds in Boston."

"With a client list a little too exclusive for the likes of Nora Coleman of Capeside," replied Pacey, taking a seat beside her at the dining table.

Joey had been distinctly uncomfortable with the prospect of sitting in the lounge room where the body had been. The police had made a thorough sweep of the crime scene for any evidence, and the chemical spray they used to show up fingerprints covered every surface surrounding the couch, giving the air a sickly sweet smell. General consensus was to set up in the dining room instead.

"Wallace is a long shot, but we have to try. Nora deserves the best," countered Joey, silently adding 'and she probably needs it.' It was proving difficult to block out the negative thoughts as they contemplated the bottom line. "Number two, Rosalind Hudson. She just won that double homicide with the nursing home patients."

"She's got a good reputation," Pacey acknowledged, peering at Joey's list. "Ken Werner, who's he?"

"Head Litigator at Ellison Coopers. He drilled me hard in an interview I had with the firm and they say he's a real bear in court. He never loses murder trials."

"Let's just hope one of them will take the case on at such short notice. Only seven days to the prelim."

"If worst comes to worst we can always ask the judge for a continuance. With a change of counsel he won't have any objections."

Pacey smiled admiringly at her. "You've thought all of this through, I see."

"I couldn't sleep last night," she explained dismissively, pulling out another list. "I've got another ten defense attorneys we can approach if the top three can't take it. We should be able to get something sorted out."

Joey rubbed her stiff neck tiredly. Pacey opened his mouth to comment, but swallowed the words when Nora came slowly down the stairs. Fatigue forgotten, Joey was immediately on her feet to greet her.

"Feel better?"

"As much as I can under the circumstances," Nora replied with a grim smile. "Can I make anyone coffee, or tea perhaps?"

"You sit down, Nora, I'll get it," Pacey offered quickly. He led Nora to a chair and made sure she was settled before disappearing into the kitchen. She watched him go, suddenly nervous about the conversation with Joey that was sure to follow.

"He's a nice boy, that one," Nora said lightly, trying to put of the inevitable as long as she possibly could.

"He's not bad," admitted Joey, seeing through Nora's attempt at a normal conversation. She took a seat beside her and smiled.

"I remember when you were just children… there was you and Pacey and Dawson Leery," Nora reminisced, her eyes shining. "Three peas in a pod you were, always together, and yet you were so different from each other. When I remember the way you and Pacey used to fight…"

"We still do," Joey grinned. "Only it’s a little more refined these days."

"I'm glad you both settled in Capeside. It’s meant the world to me having you here through all this, Joey."

Joey took her hand and hoped Nora wasn't going to cry. She had been brave so far but was obviously close to the edge.

"I don't know what I would have done without you."

Joey was saved from having to say something comforting when Pacey came in with a fresh pot of coffee. He set a cup down in front of Nora but she showed little interest in the offering, staring blankly at the wall instead.

Pacey looked pointedly at Joey, reminding her it was time they spoke to Nora properly about the consequences of the arraignment and their course of action now. Joey nodded, dreading the conversation, but she knew he was right.

"Nora, we need to talk… It's time we got you an experienced criminal defense attorney," she began with difficulty.

"I'm going to be sent to jail, aren't I?" Nora asked in a low voice devoid of emotion.

Joey looked at Pacey with a pained expression, begging him to say something reassuring.

"Not if we find a good lawyer to take the case…" Pacey began, wondering how he could tactfully say what he wanted to. "And if we had some kind of defense beyond professing you didn't do it."

Joey silenced him with a glare, and he knew he hadn't been too successful on the tact front. Nora took the words in, and rose to stand in front of the large bay window that looked out over the creek. She stood there silently for many minutes, digesting the predicament she was in. Joey knew it was her turn to say something now, but finding the right thing to say was harder than she imagined.

"I don't have any explanation, or alternative theory of who killed my husband," Nora said first, surprising them both. "Maybe the police will uncover something that points to someone else."

"Nora," Joey murmured reticently. "The police aren't looking for any other suspects. I don't think we can rely on them to find the real murderer. Is there anything, anything at all you didn't tell Doug in the interview?"

"Was Lewis seeing anyone else?" Pacey asked gently.

Nora laughed bitterly. "No, he wasn't having an affair. He didn't have any enemies or anyone with a vested interest in seeing him dead… except me. It all makes sense. I'm the obvious choice, aren't I? "

Neither Pacey nor Joey could bring themselves to answer.

Nora continued to stare at the water. "But if it was me, then surely I'd remember it? I'd know the truth myself… But I have no memory of anything happening that night. I just went to bed as usual and when I woke up he was dead. I'd remember if I'd killed him."

"The mind can play tricks on us sometimes, blocking out events that are too painful or disturbing to remember," Pacey ventured, again putting his foot in his mouth.

"You think I blocked out killing my husband?" Nora asked in an accusatory tone, turning to face Pacey.

"No, I didn't mean that…"

But Nora had already lost the hurt look in her eyes and just stared blankly at the floor.

"Have you ever had black outs?" Joey asked quietly.

Nora shook her head slowly, but then stopped. "Only sometimes, if I sleepwalk. But my memory is perfectly reliable otherwise. I'm not that old."

"Sleepwalking?" repeated Joey urgently. "Do you still do that? I thought you stopped years ago."

Nora's reputation as a chronic sleepwalker was notorious in Capeside. Before seeking help at sleep disorder clinic a few years before, she would often show up at odd places in the middle of the night. One night after she hitchhiked to Providence on a big rig dressed only in her nightgown, Lewis had insisted she see a doctor.

"I used to take pills for it to help me sleep, but I stopped using them after the episodes became less frequent. Why?"

"Could you have been sleepwalking the other night?" Joey was on her feet, walking towards Nora. "Are there times when you're likely to do it?"

"If I'm under stress or run down it can happen," Nora said with a frown.

"Have you been under stress lately? Zachary told the police you had been fighting with Lewis."

"I suppose… I don't see what difference it makes though."

"Nora, it's possible that you were sleepwalking that night, and if you did, um… inject Lewis with the morphine, you did so without volition. You didn't know what you were doing." Joey was excited by the idea, while Pacey just looked bewildered. "Don't you see, we have a defense — it's called non-insane automatism… I don't know why I didn't think of this before."

Joey began scribbling down some notes while Pacey looked over her shoulder. "It's a little dodgy, don't you think, Jo? The sleepwalking defense isn't exactly foolproof."

"But it's perfectly legitimate. If she committed any act while sleepwalking, the prosecution cannot prove the act was voluntary and therefore she's not culpable. We're looking at an acquittal!"

Pacey was nodding now as he thought more about it. "The burden's back on the prosecution… all the evidence they have amounts to nothing if she wasn't consciously aware of what she was doing. You know, it just might work."

Joey grinned at him and glanced at Nora to gauge her reaction. She was surprised to see the older woman's face crumple in misery, a shaking hand covering her mouth.

"Nora?" She immediately went over and hugged her as sobs began to wrack her small frame. Joey didn't understand. "Nora, this is exactly what we needed to help you… With this defense a good criminal attorney could get you off completely."

"It means… it means I killed him! You're saying I murdered Lewis…" she cried vehemently. "How could I do it? How could I have hurt my husband?"

Joey didn't know what to say, she felt completely wretched. Here she was celebrating the fact there was a legal loophole that would save Nora from life imprisonment, but she had overlooked the fact it meant Nora had indeed committed the crime. Joey didn't know how to comfort someone after such a shocking revelation. It was Pacey who managed to find the words this time. He gently took Nora in his arms and hushed her crying.

"Nora. Listen to me, you are not responsible for this. If you were sleepwalking then you had absolutely no control over your actions. Even if you were angry at him, you couldn't will yourself to murder him during a sleepwalking episode. It was involuntary… you are just as much a victim in this as Lewis, and the court will see that."

"But if I killed him then I deserve to be put in jail," she stuttered, her chest heaving involuntarily as she regained her breath.

"No you don't. You may have committed the act, but you are innocent of the crime. The jury will believe you, just like Joey and I do."

Nora looked gratefully at Pacey then Joey through tear-filled eyes. Joey felt her own mist over as she put an arm around Nora's shoulder.

"We'll help you through this. Even though another lawyer will be handling the case, we won't abandon you," Joey assured her. Pacey met her eyes over Nora's head and nodded. Joey held his gaze for a long moment, her expression unreadable. She was just so grateful at him for knowing what to say under such difficult circumstances.

"I don't want any other lawyer, I only want the both of you," Nora stated, destroying Joey's brief reverie. Both she and Pacey were startled.

"Nora, we're not criminal defense attorneys, we don't have the experience to try this case," stammered Joey in response.

"I don't want some stranger defending me, I want you and Pacey."

"That's really not a good idea—" Pacey spoke up.

"You said yourself we have a defense now, Joey thought of it. You said it would mean an acquittal…"

Pacey glanced at Joey, wishing she hadn't made the idea sound so perfect. "It’s a sound defense, Nora, but it still relies upon a good lawyer convincing the jury. Sometimes they don't believe someone can commit a violent act while sleepwalking."

"Do you believe it?" Nora asked him flat out.

"In this situation, yes."

"Do you, Joey?"


"Then I want you to take this case… please. I need you to help me," Nora pleaded.

"They best way we could help you would be to find a top notch lawyer to defend you," argued Pacey.

"I don't want anyone else." Nora was adamant, and she fixed Pacey with an unwavering stare.

"We'll do it," stated Joey behind her. Pacey opened his mouth in surprise but Nora had already turned around to embrace her.

"Thank you.. thank you both," Nora said, fresh tears spilling down her cheeks as she clutched Joey to her.

Pacey just stared at Joey with a puzzled expression, wondering how she could agree to such a request. She was purposely ignoring him now as she hugged Nora, so Pacey bit back his protests. He would save them until they were alone.

Part Four: Trial and Error  |  Write to Dana